Avtar Singh vs Delhi Administration and Others

T.P.S. Chawla, J.

(1) The petitioner, Avtar Singh, is an Inspector in the Delhi Police. His case, in this petition under Articles 226 and 227 of the Constitution, when extricated from the mass of confused details and irrelevancies which clutter the record, falls under four main heads. First, there is a question as to the date on which he ought to have been confirmed as Sub-Inspector, and the seniority to which he would thereby be entitled. The second question is whether he was entitled to be considered for promotion to the rank of Deputy Superintendent of Police in 1967. Thirdly, whether there were any circumstances existing which vitiated the consideration which he received for promotion to that rank in 1970 and 1972.And, fourthly, whether certain adverse remarks made in his annual confidential report for the period 1969-70 ought to be expunged. I will deal with each of these questions in that order. Confirmation and Seniority

(2) The petitioner started his career with the Delhi Police as a Constable. He was enrolled on 1/04/1936. In the course of time he rose to be Head Constable and was confirmed as such on 1/07/1947. But one month earlier, on 1/06/1947, he was appointed officiating Assistant Sub-Inspector. He continued to officiate till 1/04/1949, on which date he was reverted as Head Constable .On 15/03/1950, he was appointed officiating Assistant Sub-Inspector again. Whilst still not confirmed as an Assistant Sub-Inspector, he was appointed officiating Sub-Inspector on 26/02/1951. He was confirmed as Assistant Sub-Inspector on 8/05/1952. This is an important date as it confines, chronologically ,the controversy at one end. The petitioner has no grievance about the date on which he was confirmed as Assistant Sub-Inspector, and anything which happened prior to that date is, therefore ,of no consequence.

(3) For the purposes of regulating promotion amongst enrolled Police Officers to various ranks, rule 13.1(3) of the Punjab Police Rules 1934 (P.P.R.) requires six promotion lists to be maintained. The list which regulates promotion to the rank of Sub-Inspector is called list E, and is maintained in the office of Deputy Inspectors General Promotion to the rank of Inspector is regulated by list which is maintained in the office of the Inspector-General.

(4) On 13/03/1953, the petitioner''s name was brought on list E. Soon afterwards, in April 1953, he was ''transferred to Jullundur range and posted in District Kangra in Punjab. At that time, the members of the police force in Delhi and Punjab formed part of a joint cadre, at any rate, so far as ''Upper Subordinates'' were concerned. ''Upper subordinates'' are defined by P.P.R. 1.13as including ''all enrolled police officers of and above the rank of Assistant Sub-Inspector.'' The cadre of the two States remained joint till 1/11/1959, when there was separation and re-organisation. The petitioner was ''transferred'' back to Delhi in April 1958.Although I have used the word ''transferred'' with reference to the movement of the petitioner to Jullundur range and his return to Delhi, there is a dispute as to what exactly that means and implies. I will revert to this later.

(5) Throughout the time that the petitioner was posted at various places in Jullundur range, he continued to officiate as Sub-Inspector. On 30/03/1955 the petitioner was sent to the Police Training College at Phillaur to take a course of training known as ''The Upper School Course''. This is another qualification required to be fulfilled before an Assistant Sub-Inspector can be promoted to the rank of Sub-Inspector. Necessarily, Therefore, those who are sent for this training must be Assistant Sub-Inspectors. Since the petitioner was officiating as Sub-Inspector already, he was ''reverted'' to his substantive rank of Assistant Sub-Inspector when he was sent for training in this course. After duly qualifying in the Upper School Course, the petitioner returned to duty at the end of August 1955, and was posted as Station House Officer at Jwalamukhi. On 1/11/1955, he was again appointed officiating Sub-Inspector.

(6) When the petitioner returned to Delhi in April 1958, he was still officiating as Sub-Inspector. Ultimately, he was confirmed as Sub-Inspector on 19/06/1959.

(7) In October 1962, the petitioner was permitted to take the qualifying test for admission to list F. He passed this test and was brought on list F with effect from 3/12/1962. On 1 6/07/1963 he was appointed officiating Inspector. He was confirmed as Inspector on 9/01/1969, This is another important date as it fixes the other chronological limit beyond which the controversy under this head does not range. The reason is that it was accepted on behalf of the petitioner, after much cross-checking and verification, that no matter which date of confirmation as sub inspector was given to him after he qualified in the Upper School Course, he could not, as things actually went, have attained confirmation as Inspector earlier than that date.

(8) With this brief outline of the main events, I can turn to the ''petitioner''s contentions. In the petition it is asserted that in accordance with P.P.R. 13.18 the petitioner was entitled, and must be deemed to have been confirmed as Sub-Inspector on 26/02/1953, that is, on the conclusion of the probationary period of two years reckoned from 26/02/1951, the date on which he was first appointed officiating Sub-Inspector. There are at least three reasons why this contention cannot be sustained.

(9) Firstly, by 26/02/1953, the petitioner''s name had not even been brought on to list E, which regulates promotion to the rank of Sub-Inspector. As I have said above, his name was entered on that list on 13/03/1953. Thus, on 26/02/1953he did not have this necessary qualification. But, counsel for the petitioner argued that on a fair reading of P.P.R. 13.10 it could not be said that this was a condition precedent for promotion to the rank of Sub-Inspector. The title of that rule is : ''List E. Promotion to Sub-Inspectors''. It reads as follows :

13.10

(1) A list of all Assistant Sub-Inspectors, who have approved by the Deputy Inspector-General as fit for trial in independent charge of a police station, or for specialist posts on the establishment of sub-inspectors, shall be maintained in card index form by each Deputy Inspector General. Officiating promotions of short duration shall ordinarily be made within the District concerned [vide sub-rule 13.4(2)], but vacancies of long duration maybe filled by the promotion of any eligible man in the range at the discretion of the Deputy Inspector-General. Half-yearly reports on all men entered in the list maintained under this rule shall be furnished in the form No. 13.9(3) by the 15th October, in addition to the annual report to be submitted by the 15th April, in accordance with Police Rule 13.17(1).

(2)No Assistant Sub-Inspector shall be confirmed in a substantive vacancy in the rank of sub-inspector unless he has been tested for at least a year as an officiating sub inspector in independent charge of a police station in a district other than that in which his home is situated.''

(10) Of course, there is an obvious contrast in the form of statement adopted in the two sub-rules : whereas sub-rule (2) is expressed in the form of a positive prohibition, sub-rule (1) is simply affirmative. However, I do not think this leads to the conclusion that entry on list E is not a pre-requisite for promotion. Having regard to the scheme of the chapter in which this rule is found, it is quite plain that this rule is supplementary to rule 13.1(3). This latter rule expressly says that list E, like the other lists, will ''regulate promotion''. If promotion could be had to the rank of Sub-Inspector without coming on to list E, the list would be devoid of any function. In Kirpal Singh Officiating Assistant Sub-Inspector of Police vs. The State of Punjab and others, 1969 S.L.R. 120, it is said on page130 that ''unless the name of (an) Assistant Sub-Inspector is borne on list E he cannot even be considered for promotion as Sub-Inspector of Police''. I think the point is so clear that it will not really bear any argument. There is a discernible reason why sub-rule (2) of P.P.R. 13.10 is expressed in prohibitory form. It lays down an additional qualification which an Assistant Sub-Inspector must have before lie can ''be confirmed in a substantive vacancy in the rank of Sub-Inspector''. This qualification is apparently not necessary for ''officiating'' in the higher rank. But entry in list E is essential even for this.

(11) Faced with this position, it was suggested on behalf of the petitioner that he must be deemed to have come on to list E when he was appointed officiating Sub-Inspector on 26/02/1951.I was not referred to any rule or other provision or principle of law which would justify the making of such an assumption. In the affidavit filed by the Inspector-General of Police, one of the respondents, it is said that in 1950 a large number of posts were sanctioned in the rank of Sub-Inspector on account of reorganisation of the Delhi Police, and as a sufficient number of qualified officers were not available to man these posts, unqualified officers had to be promoted to fill the vacancies. That is probably what happened, and the petitioner was one of those who obtained promotion before he was fully qualified.

(12) Secondly, on 26/02/1953, the petitioner had not yet passed the Upper School Course. No doubt, the rules do not prescribe this as a qualification, or, indeed, even refer to such a course. Yet, it was recognised in Kirpal Singh Officiating Assistant Sub-Inspector of Police vs. The State of Punjab and others, 1969 S.L.R.120, that it was long established practice that successful completion of this training was a pre-requisite for entry on list E. The true position emerges from the judgment delivered in appeal against that decision, which i

(13) Thirdly, the whole contention of the petitioner is based on a total misunderstanding of P.P.R. 13.18. This rule states that: All police officers promoted in rank shall be on probation for two years, provided that the appointing authority may, by special order in each case, permit periods of officiating service to count towards the period of probation. On the conclusion of the probationary period a report shall be rendered to the authority empowered to confirm the promotion who shall either confirm the officer or revert him .In no case shall the period of probation be extended beyond two years and the confirming authority mast arrive at a definite decision within a reasonable time soon after the expiry of that period whether the officer should be confirmed or reverted. While on probation officers may be reverted without departmental proceedings. Such reversion shall not be considered reduction for the purpose of rule 16.4.This rule shall not apply to constables and Sub-Inspectors promoted to the selection grade, whose case is governed by rules 13.5, and 13.14.''Under this rule, the petitioner claims that the period of two years of probation ought to be counted from 26/02/1951 when he first began to officiate as Sub-Inspector. The fundamental fallacy underlying this demand is that it assumes that an ''officiating'' appointment in a higher rank is equivalent to an appointment on probation. That is not so, and this is really apparent from the fact that the rule itself enables the appointing authority, by a special order in each case, to ''permit periods of officiating service to count towards the period of probation''. Such a statement would be meaningless if the two kinds of appointment were the same.

(14) The nature of an officiating appointment can be seen from P.P.R. 13.12(1) which says :

''IN filling temporary vacancies in the rank of sub-inspector the object shall be to test all men on list E as fully as possible in independent charges. The order in which names occur in the list should be disregarded, the opportunities of officiating in the higher rank being distributed as evenly as possible. An assistant sub-inspector officiating as a sub-inspector should ordinarily continue so to officiate for the duration of the vacancy, and should not be reverted merely because another assistant inspector senior to him is not officiating. This principle may, however, be modified if in any case its observance would result in a thoroughly competent man being deprived bya man markedly his junior of an officiating appointment of more than 8 months'' duration.''

It is, thus, clear that an officiating appointment is made when there is a, temporary vacancy.

(15) A Division Bench of this court dealt with the very same question in Sat Pal vs. Delhi Administration & Others, ILR (1972) Del 888, except that it was dealing with promotion to the rank of Assistant Sub-Inspector. After referring to the relevant rules, which were the same as I have quoted, the Division Bench said :

''IN our opinion an analysis of the rules shows that officiating promotion of Assistant Sub-Inspectors from list D is intended to be made, as far as possible, in rotation or turns so as to give each man a trial in the duties of higher rank. We are of the view that officiating appointments envisaged in the rule are appointments against temporary posts or against temporary vacancies in permanent posts, both of which must, in the nature of things, be of a short duration. But in case there is a permanent post and a permanent or regular vacancy and there is exigency of public service requiring local arrangement IT is difficult to hold that the rules permit promotion of qualified men to be made in officiating capacity for more than two years being the period mentioned in rule 13.18during which their fitness and confirmation must finally be determined. It is obvious that the promotion of a fit senior officer cannot be superseded and bye-passed bya junior, by keeping the senior in the higher post in an officiating capacity indefinitely. Any other interpretation would destroy the object of the rules and would militate particularly against rule 13.18. On a construction of rule 13.9(2), if it be left to the authorities concerned to discriminate against equal persons and appoint some in officiating capacity and keep them in this capacity for several years, while appoint others on probation on way to automatic confirmation after two years, the power will be unguided and unfettered and would be discriminatory and unconstitutional.''

On the same theme it was said a little afterwards :

''THE provision in rule 13.18 empowering the appointing authority to permit periods of officiating service to be counted towards the period of probation, is not intended to confer a right on the appointing authority to pick and choose from amongst the police officers found fit for promotion and give benefit of automatic confirmation under rule 13.18 to some and to deny it to others. ... ..If there is nothing against the officers, senior qualified officers must be promoted and confirmed and if there be anything against them which militates against their fitness, there must be a definite decision according to law holding them unfit for promotion or confirmation every time their juniors are considered for promotion.''

(16) From this base, and in particular the passages cited. I would deduce the following propositions :

(A)Officiating appointments can be made to a temporary post or when there is a temporary vacancy in a permanent post .

(B)An appointment in a permanent vacancy in a permanent post is an appointment on probation within the meaning of P.P.R. 13.18.

(C)The rules must not be so worked that juniors are confirmed before their seniors not found to be unfit for promotion.

In his endeavor to show that an officiating appointment was also an appointment on probation, counsel for the petitioner referred to the first paragraph of P.P.R. 12.2(3) which says :

''ALL appointments of enrolled police officers are on probation according to the rules in this chapter applicable to each rank.''

No doubt, the rule uses the broad phrase ''All appointments''. But, I think its meaning is intrinsically curtailed by the word'' probation'',. which must necessarily be understood in the sense indicated by the Division Bench.

(17) So much for the first contention on behalf of the petitioner. His alternative contention, on this part of the case, is that, in any event, he ought to have been confirmed as Sub-Inspector before any of his juniors. This fully accords with proposition (e) which I have just deduced from the judgment of the Division Bench, and must, Therefore, be upheld. However, there is a rider, and that is that he must have been qualified for promotion in all respects at the time at which he seeks confirmation. He reached this position only in September1955, after he passed the Upper School Course, although he had been brought on list E much earlier. It is true, and in the end was conceded by counsel for Delhi Administration, that the rules were not strictly adhered to at that time in making confirmations. There are instances of persons who were confirmed as Sub-Inspectors though lacking some qualification. Much confusion also prevailed as to the mode of reckoning seniority. The matter was dealt with in accordance with instructions issued by the Inspector-General of Police, Punjab. Atone time seniority was reckoned from the date of entry on list E. At another, it was fixed with effect from ''the date of continuous officiation'' in a particular rank. This is patent from the Notes at pages5, 6, 33, 45, 56 and 74 in the file of the Home Department relating to the memorials sent by the petitioner regarding his seniority. Looking back, in the after light of the judgment of the Division Bench, it is now possible to say that the rules were misinterpreted and misapplied. In mitigation, I would add, that the rules were never easy to comprehend.

(18) Notwithstanding all that may have happened, I am bound to follow the judgment of the Division Bench and give effect to the rules. In accordance therewith, and for the reasons I have stated, the petitioner was not qualified for promotion to the rank of Sub-Inspector till September 1955. But after that time, the petitioner was entitled to be considered for confirmation as Sub-Inspector on each occasion that one of his juniors was confirmed. The petitioner says that respondents Nos. 7 to 20 were junior to him but were confirmed as Sub-Inspectors earlier. On closer examination it was found that some of them were not in fact juniors because they had been confirmed as Assistant sub inspectors before him, and the second paragraph of P.P.R. 12.2(3)says that seniority shall ''be finally settled by dates of confirmation''. In order to clarify the matter further, I gave leave to both sides to file supplementary affidavits. It now transpires that Harpal Singh, respondent No. 14, was the first Assistant Sub-Inspector junior to the petitioner who was confirmed as Sub-Inspector after September 1955. the petitioner, it will be -remembered, was confirmed as Assistant sub inspector on 8/05/1952. Harpal Singh was confirmed as Assistant Sub-Inspector on 8/05/1953. He was confirmed as Sub-Inspector on 17/10/1956. On this date the petitioner was qualified for promotion to the rank of Sub-Inspector and ought to have been considered for confirmation. And, he wa.s entitled to be considered for confirmation as Sob-Inspector on every subsequent occasion on which an Assistant Sub-Inspector junior to him was so confirmed.

(19) To this line of reasoning and the conclusion to which it lead? another objection was raised. It was said that during the period between April 1953 to April 1958 when the petitioner was posted in Jullundur range, all matters connected with his service were controlled and dealt with by that range, and he could not, Therefore, be confirmed or expect to be confirmed as Sub-Inspector in Delhi during that time. On the other hand, it was contended, that he was rent to Jullundur range only on deputation, and on his return to Delhi was entitled to obtain seniority in accordance with the second paragraph of P.P.R. 12.2(3)which provides that:

''SENIORITY, in the case of upper subordinates, will be reckoned in the first instance from date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on the same date, and the seniority of officers appointed direct on the same date being reckoned according to age. Seniority shall, however, be finally settled by dates of confirmation, the seniority inter se of several officers confirmed on the same date being that allotted to them on first appointment. Provided that any officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall, on being promoted or confirmed, regain the seniority which he originally held vis-�-vis any officers promoted or confirmed before him during the deputation.''

Clearly, if the last sentence in this rule applies the petitioner would be entitled to confirmation as Sub-Inspector as if he had remained in Delhi throughout-

(20) There is no rule which expressly says that for purposes of promotion to the rank of Sub-Inspector each range is to be regaled as a separate unit. However, this does appear to be implicit in many rules. For administrative purposes, the districts of a State are grouped in ranges under the charge of a Deputy Inspector-General who, in turn, is under the control of the Inspector-General of Police : see P.P.R. 1.4. All police officers of a State constitute one police force and are liable for duty anywhere within that Sta,te: see P.P.R. 1.5.The executive head of the police force in a district is the Superintendent of Police : see P.P.R. 1.8. Power to appoint Sub-Inspectors is vested in Superintendents of Police : see P.P.R. 12.1. It is significant that the second paragraph of P.P.R. 12.1(4) says that :

''SUB-INSPECTORS and Assistant Sub-Inspectors shall be borne on range rolls and shall receive range constabulary numbers.''

That would tend to show that ranges are self-contained so far as these two ranks are concerned. The fact that P.P.R. 13.1(3) requires that list E be maintained in the office of Deputy Inspectors-General reenforces this inference. And P.P.R. 13.11 expressly refers to list E. of each range''. Ordinarily, officiating promotions of short duration to the rank of Sub-Inspector are to be made within the district concerned, but ''vacancies of long duration may be filled by the promotion of any eligible man in the range at the discretion of the Deputy Inspector-General'' : see P.P.R. 13.10(1). If the flow of promotions in this rank is unevenly distributed among districts, the Deputy Inspector General is required to make suitable transfers of Assistant Sub-Inspectors : sec. P.P.R. 13.4(2). From the general scheme of these rules, I think, it is true to say that for promotion to the rank of Sub-Inspector the primary unit is the district, and the largest one is the range. So, it follows, that if the petitioner was in fact ''transferred'' to Jullundur range, he could not, whilst there, receive promotion or confirmation in Delhi.

(21) The order by which the petitioner was seat to Jullundur range has not been produced. It, thus, becomes a matter of inference whether he was sent by v/ay of ''transfer'' or on ''deputation''. I was not shown any rule or authority distinguishing one from the other. Nordo I propose to attempt to define the difference. For the present purpose it is sufficient to take notice of the indications implicit in the last sentence of the second paragraph of P.P.R. 12.2(3) which I have quoted above. It is clearly implied by that sentence that deputation is a posting of temporary duration outside the home range or district, and the person sent on deputation continues to look homewards for promotion or confirmation. Transfer'', which in this context is the antithesis, must, Therefore, exhibit the opposite indications. Hence, the facts must be examined from these points of view to ascertain which it was.

(22) Much stress was laid on the words of the relevant entries in the ''Records of Postings'' maintained in the petitioner''s Service Book. The entry on 16/04/1953 is : ''Transferred to Kangra District'': and that on 23/04/1953 says : ''Received on transfer''. In time with this is the entry on 24/04/1958 which reads: ''Reverted to Delhi Police''. It was also pointed out that in some of his letters and representations the petitioner has himself said that he was ''transferred'' to the Punjab or Jullundur range or Kaogra District : in particular, in his representation dated 18/12/1959 addressed to the Deputy Inspector-General of Police, Delhi. I do not attach much importance to the mere use of this terminology, especially, as it is not shown, that those who used it were conscious at that time it would have critical significance. The words ''transfer'' and ''reverted'' are equivocal and are loosely used even in reference to ''deputation''. Besides, if terminology is to be the sole guide, then in many letters the petitioner has said that he was sent to Jullundur range on ''deputation'' for a period of five years, as for example in his letter dated 13/06/1957 addressed to the Inspector-General of Police, Delhi, a copy of which is annexed to the rejoinder. I prefer to rest my conclusion on something more substantial.

(23) One important fact is that though the petitioner was confirmed as Assistant Sub-Inspector with effect from 8th May 1952. the order of confirmation was made on 21/12/1953 by the Superintendent of Police, Headquarters, Delhi, many months after the petitioner had already gone to Jullundur range. This appears from the communication of that order to the Superintendent of Police, Kangra, a copy of which is annexed to the rejoinder. It establishes that even whilst serving in Jullundur range, the confirmation of the petitioner in a particular rank was being dealt with by Delhi.

(24) Even more tell tale is the fact that throughout the time thathe was in Jullundur range, the petitioner continued to hold the constabulary number 263/D which was allotted to him in Delhi. This is the number mentioned in all, except one, of his annual confidential reports for the period when he was away. The only exception is the report for the period 1/10/1953 to 31/03/1954. In the report for this period the number mentioned is 58/J. It was never repeated in the subsequent reports. How this number came to be mentioned in that one report is not known. Whatever the reason say have been, it was apparently discarded immediately afterwards. From this circumstance, it seems legitimate io infer that Jullundur range regarded the petitioner as belonging to Delhi, and so did Delhi itself, for it did not cancel the petitioner''s constabulary number.

(25) Again, when the question arose of sending the petitioner for training in the Upper School Course, Jullundur range declined to sponsor him despite recommendations by his superiors. In a letter dated 7/02/1955, the petitioner complained to the Superintendent of Police at Delhi that his case was ''being ignored at Delhi'', on which State he claimed a lien'', and requested that he be sent for the Course by Delhi. This letter is at page 43 of the Personal File of the petitioner. A note on this letter made by the Superintendent of Police shows that the request was granted. It is admitted that the petitioner was sent to the Upper School Course in a vacancy reserved for Delhi. So, as late as April, 1955, two years after his ''transfer'', Delhi was still treating the petitioner as its protege. The petitioner regarded himself likewise. In a letter dated 2/10/1955, the petitioner requested the Superintendent of Police, Delhi, to recall him. The reasons he gave were that his ''parent State was Delhi'' and he was on its ''permanent rolls'' and held a lien at-Delhi'', and also because the matter of his ''confirmation as S. 1. will be ultimately decided at Delhi''. In another letter dated 13/06/1957 addressed to the Inspector-General of Police, Delhi, the petitioner said :

''AS usual my seniority for confirmation and promotion has to be fixed in my parent department, it may well be in the fitness of things for me to request that if my services are no longer required then my deputation period is almost over and I should be sent back to Delhi for otherwise there is every likelihood of my chances of promotion being shadowed .I may further add that I have already suffered on account of my deputation in spite of my successful career.''

And there are other similar letters.

(26) All these circumstances overwhelmingly demonstrate to pi"mind that the petitioner was sent on ''deputation''. The authorities at Delhi, and the petitioner himself, regarded the ''transfer'' as temporary, and every one proceeded on the footing that the petitioner''s confirmation and promotion would be decided at Delhi. In answer to a question put in the course of arguments the petitioner admitted that whilst in Jullundur range he had not received a deputation allowance. But I was not shown any rule or instruction providing for this. I do not think that this circumstance, even assuming the point to be a, valid one, is sufficient to displace the conclusion, which the other circumstances I have mentioned, so strongly suggest. Finding, as I do, that the petitioner was on ''deputation'', there is no need to alter the date on which, in my opinion, he ought to have been considered for confirmation as Sub-Inspector.

(27) To what relief is the petitioner then entitled ? I take up this question subject to the decision on the question of laches of the petitioner, which I will consider immediately afterwards. It is now settled law that in matters of this kind the court will not order the State Government to promote the aggrieved officer with retrospective effect. What the court will do is to issue a writ to the State Government requiring it to do its duty and to consider whether, having regard to his seniority and fitness, the officer should have been promoted on a particular date; and, if so, what consequential benefits should be allowed to him: See State of Mysore and another v. P. N. Nanjundiah an, another,1969 S.L.R. 346 and State of Mysore v. C. R. Seshadri and others, 1974 (1) S.L.R. 407. I find nothing in Janki Prasad Parimoo and others v. State of Jammu and Kashmira others, 1973 (1) S.L.R. 719 leading to a different conclusion. There, an interim arrangement was made to tide over the time till certain rules found to be defective were rectified. Even by the interim arrangement the court did not order any particular person to be promoted. It is obvious that whenever promotion is to be by selection, the court cannot order promotion but only consideration. Otherwise, the court would have usurped the functions of the selecting authority, which it is ill-fitted to discharge. In the present case, P.P-R.13.1(1) specifically says that ''Promotion from one rank to another, and from one grade to another in the same rank, shall be made byv. selection tempered by seniority'', and then states the factors governing selection. Merely because the petitioner was eligible for confirmation as Sub-Inspector at a particular time does not mean that he would necessarily have been selected.

(28) The result is that the petitioner can only get an order requiring him to be considered for confirmation as Sub-Inspector on 1 7/10/1956, and on every subsequent occasion on which an Assistant Sub-Inspector junior to him was confirmed as Sub-Inspector. Depending upon the result of that consideration, he will be entitled to be considered for consequential benefits. Thus, all his grievances flowing from delayed confirmation will automatically get resolved. For example, one such grievance is that he was not permitted to take the qualifying test for admission to list F before October 1962. He made representations in December 1959 seeking permission to take that test due to be held in January 1960. However, permission was not granted as, according to the instructions prevailing at that time, only Sub-Inspectors who were confirmed on or before 1st January 1958 were allowed to take that test. The petitioner, it will be remembered, was confirmed on 19/06/1959. But, if he had been confirmed as Sub-Inspector before 1/01/1958, he would have been permitted to take the test in 1960. If he had passed, as he did, he might have become officiating Inspector much before 16/07/1963, the date on which he was actually appointed as such. Of course, for reasons I have already stated, his date of confirmation as Inspector would still not be altered. Nonetheless, it would make a difference if he had been appointed officiating Inspector earlier than he was. He would have reached higher scales of pay earlier, and also retired on a higher scale. Thereby not only would he have drawn larger emoluments whilst in service, but his pension would also be increased. These are some of the consequential benefits which would have to be considered depending upon The result of his consideration for confirmation as Sub-Inspector.

(29) But the further question is whether the petitioner should, in the circumstances, be granted this relief at all after the passage of" so much time. The petition before me was instituted on 17/08/1973, and, prima facie, there does appear to have been in ordinate delay. It is sought to be explained on the ground that, throughout, the petitioner was continually making representations to the appropriate authorities demanding redress of his seniority. The record establishes without a doubt that, from first to last, the petitioner made representations with a pertinacity which is remarkable, causing counsel for Delhi Administration to comment that the petitioner''s persistence became tedious. I do not propose to attempt an exhaustive enumeration of all the representations which the petitioner made, but will only give a summary mentioning the more salient ones.

(30) Although the petitioner made representations even before 19thJune 1959, the date on which he was confirmed as Sub-Inspector, IT is unnecessary to refer to them because till then the matter of his confirmation remained undecided, and he had no cause of action for moving a court. More accurately, time could only begin to run against the petitioner from the day on which his date of confirmation was announced. The actual order was made on 29/10/1959, though confirming him with effect from 19/06/1959, and was presumpublished in the Police Gazette sometime later. Putting the case against the petitioner at its highest, he can be required to explain the delay only after the end of October 1959. From what follows it will be observed that he acted most expeditiously.

(31) On 1/12/1959 the petitioner addressed a representation to the Deputy Inspector-General of Police, Delhi, requesting that his date of confirmation be re-fixed taking into account that he ought to have been brought on to list E much earlier than, in fact, he was. He also requested that his name should be brought on to list By a letter dated 8/12/1959, the Deputy Inspector General rejected this representation paying that he was not competent to review the order of the Inspector-General of Police by which the name of the petitioner had been included in list E in 1953, and that the petitioner should have protested to the proper authorities at that time. To this the petitioner responded by his letter of 18/12/1959. He narrated the previous representations made by him and the assurances which ,he said, he had obtained from his superior officers regarding the preservation of his seniority. Regarding the competence of the Deputy Inspector-General to review the matter, he drew attention to P.P.R. 13.10 according to which list E is controlled by the Deputy Inspector-General and not the Inspector-General. Once again he requested that he be permitted to appear in the test due to be held in January 1960 for being brought on to list F.

(32) It appears that no reply to this letter was received by the petitioner despite a reminder dated 2/01/1960. It is true that on page 8 of file No. 7/9/64-Home (P), maintained by Delhi Administration there is a copy of a letter dated 3/02/1960 addressed by the Inspector-General of Police, Delhi, to the Superintendent of Police South District, which refers to the petitioner''s representation dated 1 8/12/1959 and states that the petitioner''s date of confirmation as Sub-Inspector ''had been correctly fixed according to his seniority, and that there were no grounds to review his case. However, there is nothing on record to show that the decision contained in this letter was ever communicated to the petitioner. In paragraph 18 of THE petition he categorically says that he did not receive any reply. Though, in the like paragraph of the affidavit sworn by the Inspector-General of Police, this allegation is repudiated with the general statement that proper replies were sent to all the petitioner''s representations'', no attempt has been made to support this statement with respect to the representation of 18/12/1959. Even the original letter dated 3/02/1960, seemingly written by the Inspector-General to the Superintendent of Police, has not been produced. In those circumstances ,I have no option but to believe the petitioner. Moreover, the subsequent correspondence tends to support his stand in as much as it does not allude to any such reply.

(33) The next representation worth noticing is that of 17/10/1963. It was addressed to the Inspector-General of Police, Delhi, and complained that in list F, which had by now been published, the petitioner had been given the seniority, to which he was entitled. By a letter dated 22/11/1963 the petitioner was informed that this representation had been rejected by the Inspector-General of Police ''after careful consideration''. No reason at all was indicated for reaching this decision.

(34) The petitioner then sent a representation dated 25/01/1964 to the Chief Commissioner, Delhi. A copy of this representation is on page 21 of Delhi Administration''s file which I have already mentioned. This representation was rejected by a letter dated 25/05/1964, and again no reasons whatsoever were given.

(35) On 1/09/1964, the petitioner sent a petition to the President of India, of which a copy is on page 77 of the Administration''s file. By a letter dated 6/03/1965 the petitioner was told that as his ''appeal'' against the order of the Inspector-General had been rejected by the Chief Commissioner and he had thus ''already exercised a right of appeal available under the rules'', the Chief Commissioner had ordered that his petition addressed to the President should be withheld.

(36) On 29/05/1965, the petitioner addressed another petition to the President. It was sent ''through proper channel'' but an advance copy was forwarded directly to the President. After more than two years, by a letter dated 23/08/1967, the Inspector-General of Police informed the petitioner that this petition had also been ''considered and rejected''. No further elucidation was offered.

(37) Yet another round of representations was started by the petitioner''s second memorial dated 28/03/1968 addressed to the President. Again, by a letter dated 12/06/1968 received from the Inspector-General of Police, the petitioner was told that his second memorial had been withheld by Delhi Administration. Nothing more was said in this letter. It appears that this letter was written by the Inspector-General pursuant to a letter dated 6/06/1968 which lie had in turn received from the Under Secretary (Home), Delhi Administration. A copy of this letter is at page 175 of the Administration''s aforesaid file. In the Under Secretary''s letter it was stated that the petitioner''s second memorial had been withheld by Delhi Administration under para 6 (9) (b) of the instructions contained in the Government of India''s Notification No. 40/5/50-Ests. (B) dated 8/09/1954. According to that instruction a petition could be withheld if it was a representation against an order ''passed by a competent authority in the exercise of appellate or revisional powers conferred by any rule, order or contract'' regarding the petitioner''s conditions of service. So, though not communicated to the petitioner, the reason was, in effect, the same as that for withholding the first memorial.

(38) Undaunted, the petitioner addressed a third memorial dated 28/07/1969 to the President. He described this as a ''rejoinder'' and justified it on the ground that it disclosed new facts. Nevertheless, he was informed by a communication dated, 7/11/1969 from the Inspector-General of Police that it had been withheld by Delhi Administration. The reasons were not disclosed.

(39) Thereafter the petitioner submitted a representation dated 1 6/02/1970 to the Lt. Governor, Delhi; and sent a copy of the same to the Special Secretary, Ministry of Home Affairs, New Delhi. Since the petitioner had apparently asked t

(40) It appears from various Notes recorded in Delhi Administration''s file No. F.7/10/70-Home(P)/Estt. that, round about this time, the petitioner was able to obtain interview with some of the concerned officers in the Administration, and was able to persuade them that his case needed a review. Fresh inquiries were made from the Inspector General of Police, and the tide seemed to be turning in favor of the petitioner. Ultimately, in a note recorded on 26/05/1972, the Chief Secretary said:

''ON re-examination, I find considerable force in the points raised by Avtar Singh and S. S. (H) may please reexamine this case. If the position stated by Avtar Singh in respect of the three cases referred to above, is found to be correct from the records, then the question, of giving him due seniority in the rank of Sub-Inspector and Inspector should be taken up.''

(41) The re-examination produced a few queries, some enquiries, anda vast quantity of Notes. Of the last some were in favor of the petitioner and others against him. One thing which is clear from those Notes is that no one grasped the true import of P.P.R. 13.18and the other relevant rules as subsequently explained by the Division Bench of this court in Sat Pal vs. Delhi Administration& Others, ILR (1972) Del 888. Nor were those rules given effect to in accordance with that judgment. What seem to have prevailed were some ad hoc notions which changed from time to time. Those notions had .admittedly led to unjustifiable discrimination in the past.

(42) Meanwhile, the petitioner kept up his tempo of representations unabated. His last and perhaps most comprehensive representation is dated 1/01/1973. It is addressed to the President, and the petitioner even asked for audience so that he could be heard in person. No reply was ever received by the petitioner to this representation. After he moved this Court in August 1973, the commencement of legal proceeding was taken as a reason by the Administration for not taking a final decision on the petitioner''s case as the matter was sub judice. Thus, the notes have agreed to ''await the outcome of this petition''.

(43) For guiding the courts'' approach to delay the case invariably cited is Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, . The overriding principle which it establishes is that ''the question is one of discretion for (the) court to follow from case to case''. Neither the periods prescribed by the Limitation Act nor any other time limits confine or restrict this discretion. But some well recognised considerations do affect its exercise. Before assisting the aggrieved party the court must be satisfied that it has been moved with the'' utmost expedition''; and, in case there has been some delay, that there is'' a satisfactory Explanation therefore. If, in the meantime, rights have been acquired by other persons, who are free from blame, considerations of equity come into play rendering the delay less pardonable. However, it must not be forgotten that these are only subsidiary principles ,and the wide power of the court to do justice on the facts of a given case remains unimpaired. This is borne out by Ramachandra Shankar Deodhar and ors. vs. The State of Maharashtra and ors., 1974 (1) S.L.R. 470 where it was said :

''.......IT must be remembered that the rule which says that the court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts.''

In both the cases before the Supreme Court, to which I have just referred, the petitions were under Article 32 of the Constitution. That does not detract from their relevance, because it has been held that the same principles apply to a petition under Article 226 : See 0. P. Gupta vs. The Municipal Corporation of Delhi and ors., 1973 (1) S.L.R. 209.

(44) In the present case there are a number of circumstances which induce me not to refuse relief to the petitioner on the ground of delay. The petitioner was due to retire on 29/02/1976. He will have retired from service by the time this judgment is delivered. If relief is granted to him, his gain will only be monetary. No one who is presently in service will be affected in any manner. On similar considerations ,the Supreme Court declined to dismiss the petition on the ground of delay in Joginder Nath and ors. vs. Union of India and Ors.. 1975 (1) S.L.R. 33. The order challenged in Vishwanath Verma vs. State of Madhya Pradesh and ors., 1973 (1) S.L.R. 1053,was of 1962. The petition, it appears, was filed eight years afterwards in 1970. It was contended that the petition should not be allowed as,in the meantime, some of the respondents had been promoted to higher posts pursuant to the impugned order. The court rejected this contention saying that it was open to the State Government ''to do justice to the petitioner in this behalf even without disturbing the promotions given'' to those respondents. The court added : "However, that is not our concern'', and quashed the offending order. In Ramachandra Shankar Deodhar and ors. vs. The State of Maharashtra and Ors.., 1974 (1) S.L.R. 470, to which I have already referred, THE petition was filed 10 or 12 years after the cause of complaint had arisen. Nevertheless, the Supreme Court refused to dismiss THE petition merely on the ground of delay because no rights had ''accrued in favor of others by reason of the delay''. Stressing that Article 16 of the Constitution conferred a fundamental right of equality of opportunity, the court said it Could not ''easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay, or the like''. Not only was the proviso to a rifle declared to be void, and a Government resolution quashed, the State Government was directed tore-adjust promotions and confirmations ''in the cadre of Deputy Collectors in the light of the principles laid down in this judgment''. These cases seem to provide ample precedent for granting relief in the present one, despite the lapse of considerable time.

(45) From the summary of the representations made by the petitioner ]which I have tried to give above, it is apparent that the petitioner never abandoned his attempts to have his grievance set right. It is true that in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, , it was said : If the government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. But the fact remains that the petitioner was never given any real answer to the points which he raised. Some of his representations elicited no reply at all. Others were simply withheld. The replies which he did receive were laconic to the point of obscurity, communicating little else than the decision. In modern legal idiom they would be classed as ''non-speaking''. More often than not, they came after great delay, sometimes running into years. The petitioner has filed the copy of a memorandum dated 9/08/1967 issued by the Chief Secretary, Delhi Administration, to all Heads of Departments ''Local Officers under Delhi Administration, containing a direction to the effect that representations should be answered ''without loss of time and in any case within a month''. No one seems to have paid any heed to this instruction. In fairness, a considerable part of the delay must be attributed to the Administration. In B. S. Brar B.A.B.T vs. The State through Secretary Education, Punjab, Chandigarh and another, 1970 S.L.R. 889, it was said that ''delay, howsoever long, is not an absolute bar to the grant of relief under Articles 226 and 227 of the Constitution'', and further that ''the conduct of the parties against whom any writ is to issue is quite relevant in determining whether a petition should be thrown out because of delay''. In that case, also, the representations of the petitioner had not been answered. The petition had been filed about five years after the petitioner''s services as a school teacher had been terminated.

(46) Both in the case just cited and in Haryana State Electricity Board vs. State of Punjab and ors., 1972 S.L.R. 540, the fact that the orders made by the authorities were erroneous or illegal or without jurisdiction influenced the court in making its decision on the question of delay. In the latter case, the petitioner had been confirmed as Assistant Engineer Class I with effect from 1957, though the order was made in 1963. The petition assailing that order was filed in the High Court in 1966. It was decided a few years afterwards The order of 1963 was quashed, and a writ of mandamus was issued requiring that the case of the petitioner for confirmation in Class I he considered ''with effect from 1/09/1956 or a date earlier than that'' and his seniority be refixed accordingly. The Supreme Court upheld the order made by the High Court and did not countenance the plea of laches. There, too, the petitioner had been making representations repeatedly.

(47) In the case now before me, I have conic to the conclusion. for the reasons already stated, that the pertinent rules were neither understood nor applied, and that injustice has been done to the petitioner. Moreover, in May 1972, the Chief Secretary of Delhi Administration himself formed the view that the case'' of the petitioner required re-examination and the matter was re-opened. A final decision has been postponed to await the result of these proceedings. Taking all these various aspects into account, in my opinion, this ''is not a case in which relief ought to be refused solely on the ground of delay. The Selection of 1967

(48) In 1967 a selection was held for promotion to the rank of Deputy Superintendent of Police. The petitioner is aggrieved bythe fact that he was not considered for promotion on that occasion. On behalf of Delhi Administration it is maintained that he was not considered because at that time he did not fulfill the necessary qualification.

(49) It is stated in P.P.R. 12.1(1) that Deputy Superintendent of Police are to be appointed according to the rules contained in Appendix 12.1. The Appendix provides for appointment to that post by direct recruitment or ''by the promotion of Inspectors'' : Rules I and IV. Having regard to the scheme and tenor of these and other rules to which I have previously referred, it seems obvious that Inspector ''here means a ''confirmed'' Inspector. The petitioner, it will be recalled, was confirmed as an Inspector only on 9/01/1969, though he was appointed officiating Inspector on 16/07/1963. It is therefore manifest that in 1967 the petitioner did not have the necessary qualification, and was not then entitled to be considered for promotion to the rank of Deputy Superintendent of Police.

(50) In the petition it has been pleaded that the petitioner is governed by the Punjab Police Rules and not by the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Police Service Rules 1965 ("DHANI'' Rules). The latter rules came into force with effect from 1/12/1965. Rule 14 of those rules has been challenged by the petitioner as being unconstitutional and void. Alternatively, he has pleaded, that he was qualified for promotion to the rank of Deputy Superintendent of Police in 1967 under rule 24 of those rules. At the hearing, counsel for the petitioner expressly disclaimed any intention of questioning the validity of any of the Dhani Rules. I need not, Therefore, go into that question and will proceed on the basis that those rules are valid. Nor need I trouble with the question whether the petitioner was governed by the Punjab Police Rules or the Dhani Rules because in either case the result is the same. Rule 5(b)(i) read with rule 14 of the Dhani Rules makes it plain that only ''officers who are substantively borne on the cadre of Inspectors ''for not less than two years are eligible for promotion to the rank of Deputy Superintendent of Police. This qualification, again, the petitioner did not fulfill in 1967.

(51) No doubt under rule 24 of the Dhani Rules, an officer who has officiated as Inspector for not less than three years can be considered for promotion If at any time the Central Government is of the opinion that the number of officers available in the list referred to in sub-rule (4) of rule 15 for appointment to duty posts is not adequate having regard to the vacancies in such posts''. But it is not shown, and there is no material on record from which it can be inferred, that any such eventuality had occurred in 1967. Hence, under whichever of the rules the petitioner''s case is considered, he was not qualified for promotion in that year. And, as I have noted earlier, he now accepts that he could not have been confirmed as Inspector before 9/01/1969. The Selections of 1970 and 1972

(52) On 23rd/ 24/02/1970 and lst/ 2/06/1972 the selection committee met and selected Inspectors for promotion to the rank of Deputy Superintendent of Police. The petitioner was considered for promotion on both those occasions, but was rejected. He contends, however, that the consideration which he received on both occasions was vitiated by a number of circumstances operating either single or in combination. These are the matters to which I will now turn.

(53) In 1965 the petitioner was functioning as Station House Officer of the Police Station at Kingsway Camp. A Sub-Inspector, Jahangiri Lal, was working under him. On 15/06/1965, in the course of an investigation then being conducted into a case of burglary respecting which a report had been lodged with the Police Station at Kingsway Camp, a suspect named Sukhai died. A judicial inquiry was started oil the same day. There was reason to believe that Sukhai had been tortured before his death. After investigation, it was decided to prosecute Jahangiri Lal and the petitioner, along with two other persons, for various offences. The petitioner sent representations protesting that he was entirely innocent and had been falsely implicated. He said that he was not even in the police station when Sukhai died, ashe had gone to the courts at Tis Hazari for some official work, and it was so recorded by Jahangiri Lal himself in the daily diary of the Police Station. Nevertheless, the petitioner was suspended on 11/10/1965 and ordered to be prosecuted. -He was charged with having committed an offence u/s 342 of the Indian Penal Code in that he wrongfully confined Sukhai.

(54) By a judgment dated 13/11/1967, the Sessions Court acquitted all the accused giving them the benefit of the doubt. Respecting the case against the petitioner, it was held that, in the circumstances, the mere summoning of Sukhai to the police station did not amount to wrongfully confining him. But some comments were made against the petitioner. Consequently, the petitioner filed a petition in this court for having those observations expunged, and also maintained that as there was no case made out against him at all he was entitled to a ''clear acquittal'' and not merely the benefit of the doubt. By an order of 25/04/1969, the late Mr. Justice Om Prakash allowed the petition in part. Some of the passages complained of in the judgment of the Sessions Judge were expunged, and it was declared that the petitioner was entitled to a ''clear acquittal''. The Judge also said : ''There is not an iota of evidence on record that the petitioner had wrongfully confined Sukhai'', and that : ''The petitioner could not be held responsible for what had happened in the police station in his absence when he was away to the courts''.

(55) According to the petitioner this whole episode was the result of the machinations of certain police officers who were inimical to him and wished to help Jahangiri Lal, the real culprit. To support his version ,the petitioner has referred to various features of the aftermathOn his acquittal by the Sessions Court, the petitioner was entitled to be reinstated with effect from the date on which he had been suspended. But by a letter dated 19/12/1967 the Deputy Inspector General of Police reinstated the petitioner only with effect from the date of his acquittal, i.e. 13/11/1967. It was added that this was ''without prejudice to any departmental action that may betaken''. The petitioner was also informed that ''orders regarding pay and allowances for the entire period he remained under suspension will be issued after scrutiny of the judgment at a later date''. A copy of this letter was endorsed to the Superintendent of Police (North) for ''taking similar action in respect of S. 1. Jahangiri Lal''.

(56) In striking contrast, Jahangiri Lal was reinstated with effect from the initial date of his suspension in 1965. This appears from a letter dated 16/01/1968 written by the. Superintendent of Police. It was also ordered that ''the period spent under suspension will count towards duty for all purposes''. In the endorsement of this letter to the Deputy Inspector-General it was said : ''The sub inspector has been reinstated from the date of suspension as the prosecuting Deputy Superintendent of Police, Delhi, has opined that no departmental action is warranted against him in the face of his acquittal by the Sessions Judge''. Naturally, the petitioner protested thathe, too, ought to have been reinstated with effect from the initial date of his suspension. He sent a representation dated 29/01/1968 to the Deputy Inspector-General of Police. Nearly two and a half years went by before the position was rectified. By a letter dated 29/05/1970, the Deputy Inspector-General reinstated the petitioner from the date of his suspension, i.e. 11/10/1965, and also ordered that ''he will draw all the emoluments had he not been placed under suspension''.

(57) The relevant entry in the Service Book of the petitioner was still not corrected for another two years. When the petitioner was suspended ,an entry to that effect was made in his Service Book and the date was also recorded. After he was first reinstated with effect from the date of his acquittal, an entry showing the date of reinstatement was made. Later, when he was reinstated with effect from the initial date of his suspension, the Service Book was not corrected. That it had not been corrected till 12/05/1972 appears from a letter written by the Account Officer in the office of the Accountant General, Central Revenues, Delhi, to the Superintendent of Police, South District, New Delhi. With this letter the Service Book of the petitioner was returned, and one of the remarks'' made was that : ''The entry regarding the reinstatement noted in the Service Book lias not been revised to give effect from 10-10-1965 instead of 12-11-1967. The needful may be done now''. From another letter dated 30thJanuary, 1973 written by the same Account Officer to the same Superintendent of Police it appears that though the date of reinstatement had been corrected, it had still not ''been attested by the competent authority''. The Service Book has been produced before me. It is apparent that the date of reinstatement originally written has been over-written so as to read 11-10-1965''. Both the original writing and the over-writing are in. ordinary blue-black ink. This overwritten date has then been scored out with red ink, and the date10-10-1965'' is written above it. also in red ink. But, even today the words along side read : ''Reinstated, from the date of acquittal and transferred to lines''.

(58) I think it is undeniable that the petitioner may have been prejudiced by the matters I have mentioned when selections were made in 1970 and 1972. At the time of the selection in 1970 the petitioner had still not been reinstated with effect from the date of his suspension. It is possible that the selection committee may have thought that he had been reinstated only from the date of his acquittal because something had been found against him. Although, when the selection was made in 1972, the petitioner had been reinstated from the date of his suspension, his Service Book still did not record the true state of the facts. As I have already pointed out, even today the statement in the entry is wrong. And, it is admitted, that the Service Book is always put before the selection committee.

(59) Notwithstanding the fact that this court had declared that the petitioner was entitled to a ''clear acquittal'', a departmental enquiry was started against the petitioner on 19/11/1969. The petitioner has contended that this inquiry was ordered in total violation of P.P.R. 16.3. According to sub-rule I of that rule ''when a police officer has been tried and acquitted by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not'', except in certain specified cases. It was urged by the petitioner that none of the exceptions applied. In the affidavit of the Inspector-General of Police it is stated that the inquiry was ordered by Mr. H. C. Jatav, Superintendent of Police (South). This enabled the petitioner to raise a further point that the departmental inquiry was illegal as it had been commenced without the sanction of the Deputy Inspector-General as was required for inquiries against Upper Subordinates by P.P.R. 16.3(2). On behalf of the Administration it was argued that the departmental inquiry against the petitioner had been ordered under P.P.R. 16.38(6). That rule provides for the holding of an inquiry In cases in which strictures are passed on the conduct of the police by a Sessions Court or by a magistrate''s court and no specific recommendation is made by the court making such strictures that an inquiry should be made............''. I need not delve into any of these questions because in the present case I am not required to rule on the legality of the inquiry. It is sufficient for my purpose to note that a departmental inquiry was started against the petitioner. He alleges that the ulterior object of starting the inquiry was to ensure that he was not selected '' for promotion to the rank of Deputy Superintendent of Police in February 1970. At first, he says, he protested against the holding of the inquiry; but, later, when he realised that proceedings were being deliberately delayed, he asked for the proceedings to be expedited as the selection committee was due to meet shortly.

(60) A preliminary inquiry was then held and evidence was recorded. On 3/01/1970, the Inquiry Officer submitted his report. He said that there was no material available on record on the basis of which a charge could be laid against the petitioner. He, therefore, recommended that the inquiry be dropped and the petitioner be exonerated. The selection committee was due to meet on 23rd/ 24/02/1970. So there was yet enough time for a decision be taken on the report of the Inquiry Officer before the selection committee met. But no decision was taken. It was delayed by about a year and a half. The final decision came in the form of a memorandum dated 21/05/1971 issued by the Superintendent of Police(South) saying that the inquiry against the petitioner ''may be closed''. No Explanation has been furnished by the Administration why the decision should have taken so long. Therefore, I have no option but to conclude that the delay was unjustified.

(61) It is not known whether the fact that a departmental inquiry was pending against the petitioner was made known to the selection committee which sat in February 1970. Unless the possibility of that being mentioned to them were completely excluded, the harm which the continued existence of the inquiry may have done to the chances of the petitioner for promotion remains real. I think the petitioner''s apprehension that this circumstance adversely affected him is not without foundation.

(62) On a number of occasions after the death of Sukhai, adverse remarks were recorded in the confidential reports of the petitioner. Bya memorandum dated 15/09/1965, the petitioner was informed that the following remarks had been made in his confidential report for the period from 1/04/1964 to 15/02/1965 :

'' IN the confidential report of Shri Avtar Singh No. D-26 for the period of 1-4-1964 to 15-2-1965 it has been mentioned that he is honest and loyal. His working experience of criminal law and procedure is good, but he is a tactless S.H.O. and his control ever his start was tax.''

In respect of the adverse portion of these remarks, the petitioner submitted a representation to the Deputy Inspector-General of Police on 25/01/1966. He pointed out that although the period to which the report pertained had ended four months before the death of Sukhai, yet the reporting officer had apparently allowed himself to be affected by that subsequent incident whilst appraising the work of the petitioner for an earlier period. The petitioner vented his view that the report had been written sometime after the death of Sukhai, and complained that the adverse remarks had been communicated to him eight months after the close of the period to which they related. I have seen the original confidential report, and it is clear there from that the adverse remarks were recorded by the Deputy Inspector-General in August 1965. No action was taken on the representation submitted by the petitioner.

(63) After he was acquitted by the Sessions Court, the petitioner submitted another representation on 29/01/1968 for expunction of the adverse remarks. By a memorandum dated 28/03/1968, the petitioner was informed that his representation had ''been kept pending till the receipt of A.D.M.''s report''. For the next five years the petitioner continued to send representations and reminders. Ultimately ,by a letter dated 28/05/1973, the Assistant Inspector General of Police informed the petitioner that the adverse remarks had been expunged. Thus, though they were later expunged, the adverse remarks existed on the Personal File of the petitioner when selections were made in 1970 and 1972. They must have influenced the selection committee, because it was admitted that the Personal File was looked into when considering an officer for promotion.

(64) Adverse remarks were also made against the petitioner in his confidential report for the period 15/02/1965 to 14/07/1965. These remarks were communicated to the petitioner on 2 6/11/1966. They were as follows :-

''THERE was no complaint about his honesty and his character is good. His relations with his subordinates were not pleasant. However, his control over the crime was satisfactory. He is under suspension in connection with the death of a person who was called at P.S. by him improperly who later died at the police station.''

It will be noticed that these remarks were communicated to the petitioner sixteen months after the end of the period respecting which they were made.

(65) On 1/03/1967, the petitioner submitted a representation seeking to have these adverse remarks expunged. He sent reminders on 14/12/1967 and 18/03/1968. In a reply dated 25/06/1968 the Superintendent of Police (South) informed the petitioner ''that the acquittal judgment has left adverse comments for which an inquiry is going on. The question of expunction of adverse remarks does not arise, till the decision of the inquiry is over''. The matter rested there for the next two years. Then by a letter dated11th August, 1970 the petitioner was informed that the adverse remarks had been expunged, and the ''category of the report (had) also been changed from "C" to "B" ''. This was ter the selection had been made in February 1970. At that time both the adverse remarks and the lower category of the confidential report subsisted.

(66) Again, in the confidential report for the period 1/07/1969 to 31/03/1970, adverse remarks were made against the petitioner. They were communicated to him by a letter of 15/06/1970. The remarks were as follows :-

IN the confidential report of Inspector Avtar Singh No. D-1/95for the period from 1-7-1969 to 31-3-1970, it is mentioned that there is no complaint against his honesty, and his moral character is good. In his attitude towards subordinates and relations with fellow officers he is a little sulky, and needs improvement. A capable and experienced officer. General reputation amongst subordinates somewhat tarnished as seldom assumes responsibility. He is not very energetic in law and order duties. It is a miracle that Inspector Avtar Singh has survived in one piece, despite all that he has undergone in the last few years in the wake of his prosecution on a murder charge .I feel he is collecting himself and deserves a hand from all of us in this process.''

A representation for having these adverse remarks expunged was made by the petitioner on 8/07/1970. More than a year afterwards, by a letter dated 1/09/1971, he was informed that the sentence It is a miracle that Inspector Avtar Singh has survived in one piece, despite all that he has undergone in the last few years in the wake of his prosecution on a murder charge'' had been expunged. It was added : The officer may please be advised to take the rest of the remarks recorded in his annual confidential report in the correct spirit and try to improve''.

(67) In respect of the other adverse remarks which still remained, the petitioner continued to make representations. In particular, he made a representation dated 4/08/1973. This representation was rejected by a letter dated 19/09/1975 sent to the petitioner whilst the proceedings here were pending. One of the reliefs which the petitioner has prayed for is the expunction of those remaining adverse remarks. I will deal with this matter separately a little afterwards. For the present it is to be noticed that the adverse remarks for the period 1/07/1969 to 31/03/1970 must obviously have been recorded much after February 1970 and, could not, Therefore, have influenced the selections then made. One sentence was expunged in September 1971, and hence it could not have affected the selection committee which met in June 1972. Consequently, unless it be found that the adverse remarks which still remain ought to have been expunged, the confidential report for this period would not have affected either the selection in 1970 or that of 1972.

(68) Lastly, in the confidential report for the period 1/04/1970 to 1/10/1970, the following remarks were made, and communicated to the petitioner by a letter dated 10/06/1971 :-

IN the confidential report of Inspector Avtar Singh No. D-1/95for the period from 1-4-1970 to 21-10-1970, it is mentioned that he is a honest officer. His moral character is good. He has shown improvement in his attitude towards subordinates and relations with fellow officers. He is extremely shrewd and experienced police officer, who knows his job well. He has to further develop confidence in his subordinate staff for better relations.''

Since the. last sentence was unfavorable to the petitioner, he senta representation about it on 23/10/1971. Reminders were sent on 23/07/1972, 7/09/1972 and 13/03/1973.In reply he received letters dated 11/02/1972 and 16/06/1972 saying that the matter was under consideration and that when a decision was arrived at it would be communicated to him. Eventually, by the letter of 28/05/1973, to which I have already referred, the petitioner was informed that the offending sentence had been expunged. But, it was there in June 1972, and may possibly have influenced the selection committee.

(69) Counsel for the petitioner showed me an office memorandum No .1/3/65-Estt (D) dated 20/02/1967 issued by the Ministry'' of Home Affairs, Government of India. It was not disputed that the instructions contained in this memorandum were applicable to the case of the petitioner. In paragraph 3 of this memorandum it is said that all representations against adverse remarks ''should be decided expeditiously by the competent authority, and in any case not later than six weeks from the date of submission of the representation''. Those who dealt with the petitioner''s representations were either unaware or unmindful of this instruction. The petitioner''s representations were dealt with at leisure, and an Explanation for the delay has not even been ventured. But, let that be. What is more important is the decision incorporated in the first sentence of paragraph 2of the memorandum that when adverse remarks are toned down or expunged the case ''should be scrutinised by the appointing authority with a view to deciding whether or not a review by the D.P.C. is justified taking into account the nature of the adverse remarks toned down or expunged''. Admittedly, that has not been done ''n the petitioner''s case.

(70) Counsel for Delhi Administration tried to contend on the basis of R. L. Butail vs. Union of India and others. 1970 S.L.R. 926 that reconsideration of the petitioner''s case was not necessary although the adverse remarks had later been expunged. That case is easily distinguishable because there the representations against the adverse remarks were rejected, and thus the position had not changed. In Mallinath Jain vs. Municipal Corporation of Delhi and others, 1973 (1) S.L.R. 413, a Division Bench of this court distinguished it on that very ground. Before the Division Bench there was a memorandum containing the following instruction :(iv) If on representation against adverse remarks, the competent authority decides to expunge or tone down the adverse remarks, the concerned officer''s case may be revised by the Departmental Promotions Committee, if it is referred to it by the competent authority. ''The Division Bench thought that this instruction was intended to ensure air play and give effect to the principles of natural justice. The court than said :-

''NO doubt ,it is stated in clause (iv) of the office memorandum, referred to above that where there has been toning down the case (may be revised) by the Departmental Promotions Committee "if it is referred to it by the competent authority". It has to be noted that the word "may" has been used with reference to the revision by the Departmental Promotions Committee and that, so far as the competent authority is concerned, the words used are "if it is referred to it by". Having regard to the importance of the toning down of the adverse remarks and to the beneficial purpose of the provisions relating to adverse remarks, it seems to us that the words "if it is referred" do not give any discretion to the competent authority. In our opinion, the provision in the clause means that so far as the competent authority is concerned he is to refer the fact of toning down to the Departmental Promotions Committee, and on such reference the Departmental Promotions Committee is given the discretion to revise or not the case of the officer concerned, which discretion, of course, has to be exercised by the Departmental Promotions Committee in a judicial manner. We are, Therefore, of the view that in view of the toning down of the adverse remarks, the case of the petitioner ought to have been referred again by the Commissioner to the Departmental Promotions Committee and the Union Public Service Commission.''

(71) The instruction contained in paragraph 2 of the memorandum shown to me, and to which I have referred above, is substantially similar to the one which was before the Division Bench. I recognise that the phraseology used tends to give the impression that the appointing authority has a discretion , decide ''whether or not'' there should be a review by the Departmental Promotions Committee; but,I think. for the same reasons as given by the Division Bench, that there is no discretion. In any case, I would hold that natural justice requires that the petitioner''s case be reconsidered as the adverse remarks against him were expunged. The petitioner''s case is stronger than that which was before the Division Bench, because there the adverse remarks were only toned down. After the judgment of the Division Bench was cited, counsel for the Administration rightly conceded that the case of'' the petitioner would have to be reconsidered as at the time of the selections in 1970 and 1972,disregarding the adverse remarks which had subsequently been expunged.

(72) As a result of each and all of the conclusion''s which I have stated, I hold, that the petitioner was not given a fair and proper consideration at in." selections of 1970 and 1972, and that the rules of natural justice were violated. He is, Therefore, entitled to be reconsidered as at those times on the basis of his record as it ought to have been in accordance with this judgment. I have not inquired into the allegations of mala fides made by the petitioner because I have been able to reach this finding without going into them, and he could not have got any larger relief even supposing his allegations were true. Nor have I dealt with the many side issues agitated by the petitioner, over which much time was spent, because on sustained discussion I found them to be both irrelevant and inconclusive.

(73) One point remains to be clarified. It appears that in April975 another selection was made for promotion to the rank of Deputy Superintendent of Police. The petitioner was again rejected.'' As this happened long after the petitioner had filed his petition in this court that selection could obviously not be attacked. So there were no pleadings thereon. In the course of arguments, however, counsel for the Administration said that since the petitioner had been rejected even in 1975, much after the adverse remarks had been expunged and the record had been righted in every way, it was reasonable to infer that he would not have been selected earlier in 1970 or 1972, and to order a reconsideration would be pointless.

(74) I think this reasoning is specious. The extent of the competition at different times may have varied, and the considerations which weighed with the different selection committees may not have been the same. It may even be that because he had been passed ever twice, the selection committee in 1975 was affected by that circumstance in itself. At any rate, I do not think that, whatever the reasons may have beentor his rejection in 1975, he can thereby be deprived of his right to affair and proper consideration in the earlier years. Furthermore, as pointed out by counsel for the petitioner, even in 1975 the statement in the Service Book of the petitioner as to the date of his reinstatement was not correct. It still said that he had been reinstated from the date of his acquittal. That statement was misleading, and could conceivably have given the impression to the selection committee that the petitioner was to some degree'' under a cloud. On this ground alone. I would hold, that the selection in 1975, so far as the petitioner was concerned was again vitiated. I have stated my opinion upon the point, because it was argued on both sides, and it would be futile to drive the parties to a further and unnecessary litigation, The remaining adverse remarks

(75) It will be recalled that not all the adverse remarks recorded in the confidential report of the petitioner for the period 1/07/1969 to 31/03/1970 were expunged. The petitioner is still aggrieved by those that remain, and lias prayed that the expunged by this court. There are three such remarks :

(I)In his attitude towards subordinates and relations with fellow officers he is a little sulky and needs improvement.

(II)General reputation amongst subordinates somewhat ternishedas seldom assumes responsibility.

(III)He is not very energetic in law and order duties.''

The petitioner was under the impression that these remarks, as also the sentence It is a miracle that Inspector Avtar Singh has survived in one piece, despite all that he has undergone in the last few years in the wake of his prosecution on a murder charge'' which was expunged in September 1971, were all written by Mr. H. C. Jatav, Superintendent of Police, South District. New Delhi. Therefore, he attributed all these remarks to the animosity which Mr. Jatav allegedly bore towards him-But on looking at the original confidential report, it transpired that the position was rather different.

(76) The manner in which annual confidential reports are to be prepared is prescribed in P.P.R. 13.17(1). That rule says : ''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''. Thus, three different persons record their views in the confidential report. The remarks enumerated as (i) and (ii) above were made by Mr. H. C. Jatav. The remark enumerated as (iii) was recorded by the District Magistrate. And, the sentence which has already been expunged, was written by the Deputy Inspector-General of Police.

(77) In this state of affairs, the argument on behalf of the petitioner that the three adverse remarks which still remain were inspired by what was expressly stated in the remark which was expunged, is untenable. The Deputy Inspector-General of Police may have been thinking of the prosecution against the petitioner whilst writing his report, but there is no reason to think that Mr. Jatav or the District Magistrate had the same matter in mind when they wrote theirs. Indeed, both of them had made their comments before the report was sent to the Deputy Inspector-General. Nor do I find any material on record from which it can reasonably be concluded that the remarks made by Mr. Jatav were prompted by any improper motive. It seems clear to me that the petitioner was labouring under the wrong impression that the entire report had been written by Mr. Jatav, and, Therefore, concentrated his attack on him. But, it turns out, that it was wholly misconceived.

(78) For the rest, it was argued that the petitioner was a first rate officer who had been awarded many cash rewards and commendatory certificates during his career, and that the adverse remarks which still stood were unjustified. The reports made by other reporting officers about the petitioner at various times were quoted in support of this submission. But these are not valid grounds for expunging adverse remarks, as it is well established that "This court cannot substitute its own opinion for that of the appropriate authority who has to judge the working of a public servant and write the confidential report'' : See Kirpal Singh Officiating Assistant Sub-Inspector of Police vs. The State of Punjab and others, 1969 S.L.R. 120. Nor was it necessary that the adverse remarks should have recited the specific instances on which they were based : See R. L. Butail vs. Union of India and others, 1970 S.L.R. 926. If such were the requirement, it would be impossible to write a confidential report without maintaining a dossier for every subordinate. Understandably, P.P.R.13.17(5) enjoins reporting officers to ''comment generally''. The result is that I do not find any grounds for expunging the remaining adverse remarks .

(79) This concludes the discussion on the points arising in the case.In the course of arguments, counsel for the petitioner urged me to take ''serious notice'' of certain incorrect statements alleged to have been made in the affidavit sworn by Mr. Bhawani Mal, Inspector-General of Police, Delhi. It is true that two or three statements made in that affidavit are inaccurate or wrong. In particular, the statement in paragraph 2 of the affidavit that respondents 23 to 43 ''are all senior to the petitioner in every respect'' was proved to be wrong from the seniority list of confirmed Inspectors as on 1/07/1974 filed by the petitioner, the correctness of which was not disputed. However, I am not persuaded that any mis-statement was deliberately made or that there was any sinister intention. The way the petition is drafted it is so confusing that I cannot blame the deponent of the affidavit for having been confounded. And, besides, as I have said already, there was much confusion prevailing in the Administration as regards the principles for determining seniority. In the circumstances, I do not think that the mis-statements call for any further notice.

(80) In view of the conclusions which I have reached, this petitioner is allowed to this extent that I make an order in the nature of mandamus directing Delhi Administration and the Union of India-

(A)to consider the petitioner for confirmation as Sub-Inspector as on 17/10/1956, and on every subsequent occasion on which an Assistant Sub-Inspector junior to him was confirmed as Sub-Inspector; and dependent upon the result thereof, to give him all such consequential benefits to which he may be entitled ; and (B)after ensuring that the record pertaining to the petitioner is in all respects accurate and complete, to refer his case to the selection committee for consideration again whether he ought to have been promoted to the rank of Deputy Superintendent of Police when selections were made in February 1970 and June 1972. Before doing so, the entry in his Service Book regarding the date of his reinstatement will be corrected.

These directions will be fully implemented within three months from today .In fixing time for compliance I have been guided by the course adopted in State of Mysore vs. C. R. Seshadri & Ors., 1974 (1) S.L.R.407. Having regard to the entire circumstances of the case, I will leave the parties to bear their own costs.