Basant Kumar Singh vs State of Nagaland and Others

S.N. Phukan, J.—By this common judgment and order, I propose to dispose of two writ petitions filed under Article 226 of the Constitution and registered as Civil Rule No. 1028/87/5(K)/88 and Civil Rule No. 102(K) of 1990. The writ Petitioner is a member of the disciplined force, namely, Nagaland Police Service and it is really unfortunate that the Petitioner has approached this Court for not getting promotion in due course. I hope and trust in future, the authority concerned would take appropriate action 50 that members of police force need not come to this Court to seek relief as this is necessary to keep up the morale, of the police force who are the guardian, of law and order of the Country.

The writ Petitioner joined directly as Deputy Superintendent of Police in Nagaland Police Service. It may be stated that at the relevant time, there was no duly framed service rules under Article 309 of the Constitution. Such rules were framed only in the year 1977.

Though there was a criminal case against the Petitioner which ended in Final Form i.e. during investigation, the investigating machinery did not find any case against the Petitioner, however, in view of the criminal investigation, the Petitioner was kept under suspension and during the period of suspension, a fresh departmental proceeding was drawn up.

By the final order dated 14.4.1981 the following punishments were imposed:

(i) The pay of Shri Ch. Basant Kumar Singh shall be reduced to the lower stage of Rs. 1100.00 (Rupees eleven hundred) only in the time scale of pay of Rs. 100-50-1300-(EB)-50-1500/-p.m. for a period of 3 years from the date of his resumption of duty.

(ii) The Officer shall not earn increment of pay during the aforesaid period of 3 years.

(iii) This reduction will not have the effect postponing the future increment of his pay on expiry of the period of 3 years.

This order is available in the counter-affidavit filed in Civil Rule No. 102 (K) of 1990. On the same date i.e. 14.4.1981 the suspension order was also revoked and the period of suspension was treated as on duty for all purposes except for pay and allowances which would be the same as already drawn during the period of suspension. This order is available at Annexure-C to the first writ petition filed by the present Petitioner which was registered as Civil Rule No. 571 of 1984. I may only add here that not allowing the writ Petitioner to draw any amount more than his subsistence allowance during the period of suspension by the above order is bad in law inasmuch as the law is well settled that before passing such order the delinquent officer has to be given a reasonable opportunity to show-cause, which was not done in the case in band. But as this matter has not been challenged in the present two writ petitions, I am not passing any order in this aspect.

As stated above, the Petitioner approached this Court filing a writ petition under Article 226 of the Constitution which was registered as Civil Rule No. 571 of 1984 and it was disposed of by order dated 13-9-84 which is available at Annexure-B/C of the writ petition registered as Civil Rule No. 1028 of 1987. The writ petition was closed as an assurance was given by the learned Advocate General of the State that the representation of the writ Petitioner would be considered. Thereafter, the Petitioner was informed by memorandum dated 1-2-1985 issued by the Home Commissioner and Secretary, Government of Nagaland vide Annexure-C to the writ petition registered as Civil Rule No 1028/87/5(K) of 1988. Paragraph 3 of the said letter is relevant for the present purpose and it is quoted below:

In view of the position explained above, Shri B.K. Singh is entitled to confirmation in the Nagaland Police (Class-I) Service with effect from 23.4.1984 and accordingly his case for confirmation is being processed. As regards his claim for promotion, he will be considered for the ex-cadre post of D.I.G. of Police as and when vacancy occurs.

As till date, the Petitioner has not been promoted to the post of Deputy Inspector General of Police, the present two petitions have been filed. It may be stated that the writ Petitioner was confirmed with effect from 1.8.1988 vide notification dated 8.8.85 which is available at Annexure-I to the counter filed in the above Civil Rule No. 1028/87/5(K) of 1988.

The substance of both the counter-affidavit filed on behalf of the Respondents is that the Petitioner could not be promoted as his record was not up to the mark and in other words the Annual Confidential Reports for 1933, 1985, 1986 and 1987 were not up-o the mark.

Heard Mr. Bedi, learned Counsel for the writ Petitioner and Mr. I. Jamir, learned Govt. Advocate.

At the time of hearing the personal file of the writ Petitioner has been made available along with the note sheets. Normally note sheets are not available to be perused by others. But the learned Government Advocate agreed to allow Mr. Bedi to peruse the note sheets and it was duly recorded by this Court vide order dated 28.7.93 passed in Civil Rule No. 1028/87/5(K) of 1988. I have also perused the note sheets and I find that the file was put up the Chief Minister of the State through the Chief Secretary and in the minutes recorded on 16.6.86, it was decided to promote the writ Petitioner to the next higher post i.e. Dy Inspector General of Police vide Note sheet at page 55. From the note sheets at page 47N. I find that it was also decided that the Petitioner would be confirmed w.e.f. 23.4.84. But for the reasons not known and it is also not clear form the record why this order was not communicated. I also find from the note sheets that subsequently the higher official was misled inasmuch as it was recorded that the effect of the punishment imposed on the Petitioner would be over only on 27-1-37 which was absolutely incorrect. Presumably, because of the above notes and orders promise was made by the above letter to the Home Commissioner regarding confirmation of the writ Petitioner and also his promotion to next higher post. I do not want to say anything more regarding subsequent promotion of other junior officers for obvious reasons.

Therefore, in view of the above order of the Home Commissioner and the order of the highest authority the Petitioner ought to have been promoted to the post of Dy. Inspector General of Police on or after 16.6.86 and should have been confirmed w.e.f. 23.7.1984.

Regarding Annual Confidential Reports, I find that all the Annual Confidential Reports have not been produced. Along with the counter affidavit in Civil Rule No. 1028 of 1987/5(K) of 1988, Annual Confidential Reports of the writ Petitioner for the years 1983, 1984, 1985, 1986 and 1987 have been annexed. The Annual Confidential Report for the year 1982 is not available. In the A.C.R. for the year 1981 I find no remark by the Reviewing Officer. Similarly, in the A.C.R. for the year 1983 there is remark of the Reviewing Officer.

According to the writ Petitioner, the adverse remarks in the A.C. Rs were communicated to him just on the eve of promotion and that he has been superseeded by 8 Officers of Nagaland Police Service.

It has been admitted by the Respondents in the counter filed in Civil Rule No. 102(K) of 1990 vide paragraph 18 that the representations filed against the adverse remarks by the writ Petitioner were not disposed of. An interesting statement has been made in paragraph 22 of the said counter which runs as follows:

...Although the Petitioner had no adverse remarks of serious nature in his AC Rs when his merit was compared with the merit of the other eligible officers his merit was found lower because of which he was not recommended for promotion.

In view of the above statement, this Court directed the learned Govt. Advocate to produce all the Annual Confidential Reports, but unfortunately only some A.C. Rs were produced.

Before I proceed further, let me consider the law regarding adverse entry in the A.C.R.

In Gurdial Singh Fijji v. State of Punjab (1979)2 SCC 369 it was held by the Apex Court that the adverse entry in the A.C.R. cannot be acted upon till opportunity for representation against has been afforded and the representation was duly considered.

In Brij Mohan Singh Chopra v. State of Punjab (1987) 2 SCC 189, the Apex Court held that whenever an adverse entry is awarded to a government servant, it must be communicated to him for the purpose of giving him an opportunity to improve his work and to make representation. It was also held that if such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not. According to their Lordships making of a representation is a valuable right to a government employee and if the representation is not considered, it is bound to effect him in his service career.

In the State of Haryana Vs. P.C. Wadhwa, IPS, Inspector General of Police and Another, the Apex Court held that the object of making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct and character, as the case may be and that the adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice. It was further held that the whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay.

The Punjab and Haryana High Court in Kehar Singh v. The State of Punjab 1991 (5) SLR 658, held that representation against adverse remarks if pending, adverse remarks cannot be taken into consideration for the purpose of promotion. I am in respectful agreement with the views expressed in the above decision.

Coming to the case in hand in addition to the fact that all the A.C. Rs were not made available and that apart, there are defects in the A.C. Rs as stated above, the adverse remarks were communicated after considerable lapse of time and that too at the time of consideration for promotion. The Respondents have admitted that the representations filed by the Petitioner against the said adverse remarks are still pending. Therefore, the Respondents erred in law in not promoting the writ Petitioner to the post of Dy. Inspector General of Police and allowing his juniors to supersede him. The Respondents ought to have discarded the adverse remarks while considering the promotion of the writ Petitioner to the next higher grade.

Mr. Bedi has urged that the A.C. Rs. in which adverse remarks were recorded were written by the officer junior to him after their promotion to the higher grade. I need not express any opinion in this regard as in my opinion the writ Petitioner is entitled to get relief on the grounds stated above. I may only record here that all the A.C. Rs. where adverse remarks were recorded shall not be considered by any authority if there is any occasion in future. 1 say so on the ground stated above and the defects in the A.C. Rs.

It may be stated that the I.P.S. Cadre was constituted in January, 1989 though the service was constituted w.e.f. 1.4.1986. According to Mr. Bedi there are four posts of D.I.G. in the cadre of I.P.S., Mr. Bedi has also stated that at present there are 8 posts of equivalent rank. Therefore, there will be no difficulty for this Court to pass appropriate orders in case of the writ Petitioner.

Another fact which is quite suprising is that all the officers who were junior to the writ Petitioner were promoted temporarily subject to regularisation by the D.P.C. In this connection I may refer to Annexure-B-I to the counter filed in C.R. No. 1028/87/5(K) of 1988. But inspite of direction given by this Court, no proceeding of the Departmental Promotion Committee has been placed before this Court except the minutes of such committee held on 17.7.1990. Therefore, I can safely hold that officers who were junior to the writ Petitioner were promoted without processing their cases by duly constituted Departmental Promotion Committee.

In Civil Rule No. 102(K) of 1990, the writ Petitioner has claimed his selection in the initial Constitution of the I.P.S. Cadre for Nagaland. This is outside the purview of this Court in view of the Central Administrative Tribunal Act, 1985. The writ Petitioner may seek redress in the appropriate forum for his selection in the initial constitution of IPS Cadre. Accordingly, it is directed that the said Civil Rule No. 102(K) of 1990 may be transferred to the Hon''ble Central Administrative Tribunal at Gauhati and for the purpose of this Court, this may be treated as disposed of. However, office shall keep copies of all the records, namely, the writ petition, counter affidavit, Annexures etc. in the record of Civil Rule No. 1028/87/5(K) of 1988 as in this judgment, I have quoted from the counter affidavit filed in that case.

In Misc. case No. 116 of 1987 by order dated 21.9.87, a Division Bench of this Court, in which I was a party, it was directed that during the pendency of the Civil Rule, namely, C.R. No. 1028/ of 1987/5(K) of 1988 if any promotion is made in supersession of the Petitioner that will be subject to the outcome of the Civil Rule.

In view of the above interim order, there will be no difficulty to pass an appropriate order in this regard.

Situated thus, I direct the Respondents to treat the Petitioner as confirmed w.e.f. 23.4.1984 and the seniority list shall be accordingly modified. The writ Petitioner shall be deemed to have been promoted to the post of Dy. Inspector General of Police w.e.f. 16.6.1986 notionally, but he shall not be entitled to get any back salary till date. From today, onwards, he shall be posted as D.I.G.P. in a post which is not in the cadre of I.P.S. and he shall be entitled to draw the salary of the D.I.G.P. from today i.e. 30.7.1991. While fixing the salary of D.I.G.P. notionally, the increments shall be counted from the above date i.e. 16.5.1986 without any arrear payment. If necessary an additional post shall be created by the Respondents to accommodate the Petitioner in the post of D.I.G.P. out-side the IPS cadre. The above period of notional promotion shall be counted for all other service benefits including pension and pensionary benefits. I further direct that the adverse entries made in the A.C. Rs for the relevant years shall not be taken into consideration by any authority for any purpose in view of what has been stated above.

With the above direction, both the petitions are disposed of with further direction that the Civil Rule No. 102(K) of 1990 may be transferred to the Hon''ble Central Administrative Tribunal at Gauhati as stated above. No costs.