Gurdev Singh Sidhu vs State of Punjab and others

B.R. Tuli, J.—Shri Gurdev Singh Sidhu, the petitioner in this case, was appointed as Assistant Superintendent of Police, on 4th February, 1942, in the erstwhile State of Patiala and his conditions of services were governed by the Patiala State Service Regulations, issued by the Maharaja of Patiala. He was sent for the Indian Police Officers Training Course at the Police Training School, Phillaur, during the Sessions 1942-43. The petitioner passed out creditably and thereafter he was given practicle training at various places in the erstwhile State of Patiala. He was confirmed as Assistant Superintendent of Police in the year 1947 when a regular vacancy occurred.

On the formation of the Patiala and East Punjab States Union in 1948, the petitioner was intergrated in the Pepsu Police Service as an Assistant Superintendent of Police. He was promoted to officiate as Superintendent of Police in February, 1950. Subsequent to the formation of the Patiala and East Punjab States Union, the Indian Police Service Scheme was extended to the Pepsu Police Service and the petitioner appeared before the Federal Public Service Commission in June, 1950. He was found suitable and his name was placed on Select List ''II'' drawn up under that scheme. At that time the petitioner was officiating as Superintendent of Police. He was to work on a cadre post sanctioned for the State of Pepsu for a period of five years before he could be absorbed in the Indian Police Service, according to the provisions of the scheme.

The petitioner was reverted from the rank of Superintendent of Police to that of Deputy Superintendent of Police, with effect from 1st December, 1954, when he was on two months'' leave. At that time four other officers, namely, Sarvshri Ram Singh, Harpal Singh, Daljit Singh and Kanwar Sain, who were not on the Select List, were officiating as Superintendents of Police against cadre posts. According to the petitioner this reversion was due to the personal ill-will of Shri Gurdial Singh who became the Inspector-General of Police, Pepsu, in 1952 and was ordered on the pretext that the petitioner was the junior-most officiating Superintendent of Police, ignoring the fact that the officers mentioned above were actually junior to him. The petitioner challenged this reversion by means of a suit, the last appeal arising therefrom is pending in the Supreme Court of India. Thereafter Pandit Pyare Lal and Shri Karam Singh, who were junior to the petitioner, were promoted to officiate as Superintendents of Police and the petitioner was ignored.

After the merger of Punjab and Patiala and East Punjab States Union on 1st November, 1956, the petitioner was integrated as Deputy Superintendent of Police in the new State of Punjab. He crossed the efficiency bar with effect from 2nd November, 1958. At that time he was posted in the State of Jammu and Kashmir in the field area under the operational command of the Army. In recognition of his services he was awarded President''s Medal. The petitioner has alleged that Shri Gurdial Singh, who was posted as Inspector General of Police, Punjab in June, 1960, managed to get bad reports against the petitioner and served him with a notice for compulsory retirement in March, 1963 on the grounds of corruption, dishonesty, inefficiency and infamous conduct although no such remarks had ever been conveyed to the petitioner. The petitioner has alleged animosity and mala fides against Shri Gurdial Singh who has since retired from the post of Inspector General of Police, Punjab, but he has not cared to put in any return denying these allegations in spite of the fact that he was made a respondent to the petition and was duly served. The petitioner challenged the show-cause notice and filed a writ petition in the Supreme Court under Article 32 of the Constitution of India which was registered as Writ Petition No. 200 of 1963. This writ petition was accepted by their Lordships of the Supreme Court on 1st April, 1964. The show-cause notice was quashed and the petitioner was granted costs of the petition. In spite of all these facts the petitioner was not promoted to officiate as Superintendent of Police. He represented his case to the department but without any result. He than submitted a representation of the Chief Minister, Punjab, in December, 1967, a copy of which is annexure ''A'' to the writ petition. This representation bears no date but, according to the petitioner, it was submitted some time in December, 1967. This representation was considered by the Chief Minister and he passed an order on 24th April, 1968, which is in Punjabi, and was read out to me in the Court by the learned counsel for the respondents. The English rendering of this order, as agreed to by the counsel for the parties, is as under:

Shri Gurdev Singh Sidhu started service as A. S. P. in the year 1942 in the erstwhile State of Patiala and he completed his training course at the Police Training School, Phillaur in the Session of 1942-43. The above mentioned Officer served in various districts and obtained training in the field. On the formation of Pepsu he was integrated as A. S. P. and then in February, 1952, he was promoted as Officiating Superintendent of Police. With the approval of the U. P. S. C. (Union Public Service Commission) his name was brought on Select List No- II. His work and conduct was to be watched for a period of five years. After that his name was to be considered for promotion to the I. P. S. Cadre, In December, 1954, he was reverted and posted as Deputy Superintendent of Police. At the time of his reversion some officers junior to him continued to work as Officiating Superintendents of Police against Cadre Posts. In 1955 again he was ignored for promotion to the rank of Officiating Superintendent of Police. Instead another junior officer was appointed in his place.

At the time of merger of the Pepsu and Punjab, Shri Sidhu was integrated as D. S. P. Then in November, 1958 he was permitted to cross the Efficiency Bar in the rank of D. S. P. Since then he had been working in the field area of J & K which was under the operational Command of the Army and in consideration of his discharging onerous duties, Shri Sidhu was awarded President''s Medal. In the year 1963, this officer was served with a Show-Cause Notice for compulsory retirement. This Notice was quashed by the Supreme Court on his filing a Writ Petition.

On perusal of his service record it has been noticed that the Police Department was not in favour of his promotion because in their opinion his service record was not good. I have carefully examined his Confidential Reports and have noticed that this officer has usually been considered to be competent, industrious, honest, and loyal. In very many reports he has been described as a competent field-worker, honest, straightforward and reliable type of officer who could work efficiently. Some adverse reports regarding this officer which have been repeated are that this officer has got the bad habit of drinking. On consideration of his over-all record, it appears that this adverse remark has proved a hurdle in the matter of his promotion. On the other hand, even the U.P.S.C. once considered him fit for Select List No. II and for this approval was accorded as mentioned above. This Officer was awarded President''s Medal in recognition of his praiseworthy performance of his arduous duties. I have been given to understand that this Officer will do his best to give up the bad habit of drinking.

On consideration of his satisfactory work and conduct, I have reached this conclusion that it will not be correct to completely ignore this Officer for promotion. Due to his reduction in rank and supersession by officers junior to him, this officer has already suffered a considerable loss and because of this he is very much disappointed.

Keeping in view the above-mentioned factors and taking into consideration that officers junior to him are working as Officiating Superintendents of Police and finding that these officers are not even on Select List, it will be in my opinion an act of injustice to withhold Shri Sidhu''s promotion any further.

Therefore, this officer may now be promoted as Officiating Superintendent of Police. He would be promoted on regular basis when his name is approved and brought on the Select List. After six months a Special Report on his work and conduct should be recorded and the decision regarding 1 is continuation on this post (Post of Superintendent Police) be taken on the basis of this Spec Report.

This order was marked to the Inspector-General of Police, Punjab, for compliance In pursuance of this order the petitioner was promoted to officiate as Superintendent of Police (provisional) and was posted as Additional Superintendent of Police, Ferozepur, by order dated 5th July, 19t8, a copy of which is annexure ''B'' to the writ petition. He took charge of his post at Ferozepur on 29th July, 1968. Hardly had the Petitioner worked in his officiating post for a month when orders were passed reverting him as Deputy Superintendent of Police. Before this order could be served on the petitioner, he filed the present writ petition in which prayer has been made for quashing the order of reversion, a copy of which is annexure ''C'' to the writ petition.

The return on behalf of respondent No. 1 has been filed by Kanwar Shamsher Singh Inspector-General of Police, in which it has been denied that the reversion of the petitioner from time to time and his non-promotion were due to any manipulations. The allegations of personal Animosity between the petitioner and Shri Gurdial Singh are also denied It is admitted that the ''Chief Minister, Punjab, ordered that this officer may be promoted as officiating Superintendent of Police for six months and that a special report about his work and conduct may be submitted to Government for that period. It was further ordered that his promotion against a regular post of Superintendent of Police should be considered subject to the admission of his name to the Select List (a list of D.S.Ps. considered fit for appointment against.cadre posts of S.Ps ) Under orders of the Chief Minister. Punjab, the petitioner was provisionally promoted and posted as Additional Superintendent of Police, Ferozepur on trial basis." (Para 19''of the return).

The petitioner was promoted as officiating Superintendent of Police by order dated 5th July, 1968, as stated above and he took charge of that post on 29th July, 1968, but on return of Shri Brijinder, Singh, an I.P.S. Cadre Officer, from leave, the petitioner was reverted to the post of Deputy Superintendent of Police. The contention of the respondents is that this reversion was purely on administrative grounds. Since the petitioner was the last provisionally promoted Superintendent of Police, he had to be reverted when Shri Brijinder Singh returned from leave. In spite of this contention of the respondents, the learned counsel for the petitioner has vehemently urged that the order of the Chief Minister, set out above, was specific on the point that it would be an act of injustice to withhold petitioner''s promotion any further and, therefore, it was directed that he should be promoted as officiating Superintendent of Police and a special report on his work and conduct should be recorded after a trial of six months. It is thus clear that according to this order the petitioner had to be promoted as officiating Superintendent of Police and the junior-most from amongst the officiating Superintendents of Police, who had been promoted from the rank of the Deputy Superintendent of Police, had to be reverted, if an occasion arose, and not the petitioner. By this reversion after about a month he has not been allowed to show his worth for a period of six months as ordered by the Chief Minister. Unless that is done, the petitioner cannot expect further promotion. His name for the Select List has to be considered after his trial for six months and the special report on his work and conduct that will be recorded after the period of trial. The order of reversion, therefore, directly goes contrary to the order of the Chief Minister and cannot be upheld.

It has to be noted that the petitioner is the senior-most Deputy Superintendent of Police and his promotion has been withheld so far for one reason or the other and after careful consideration of the entire case including his service record, the Chief Minister, who held the portfolio of Police, came to the conclusion that the injustice already done to the petitioner should be ended and withholding his future promotion will amount to continuance of the injustice to him. His reversion after a period of one month only has deprived him of the chances to prove his worth for which six months'' period of trial was allowed to him. It is the fundamental right of every public servant to seek higher promotion if he is eligible therefore and to obstruct his path of promotion, as has been done arbitrarily in the instant case, amounts to infringement of his fundamental right under Article 16 of the Constitution. The last Deputy Superintendent of Police who had been promoted to officiate as Superintendent of Police prior to the petitioner was one Shri Raghbir Singh Palta. He is at serial No. ]81 in the List whereas the petitioner is at No. 2, No 1 having retired. It was categorically stated in the replication filed by the petitioner after obtaining the permission of this Court that Shri Raghbir Singh Palta was not a confirmed Deputy Superintendent of Police. He was only a confirmed Inspector and was officiating as Deputy Superintendent of Police when he was promoted to officiate as Superintendent of Police. He had thus no right to the promotion in preference to the petitioner as in all fairness he should have been reverted when Shri Brijinder Singh returned from leave, and not the petitioner, in order to carry out the orders of the Chief Minister. It is.noteworthy that Kanwar Shamsher Singh, Inspector General of Police, filed an affidavit in reply to the replication filed by the petitioner and in that affidavit this allegation was not denied that Shri Raghbir Singly: Palta was not a confirmed Deputy Superintendent of Police when he-was promoted to officiate as Superintendent of Police. I am, therefore, entitled to infer that the allegation made by the petitioner in this behalf is correct.

The learned counsel for the respondent has submitted three points:

(1) That the order of reversion being administrative, writ of certiorari does not lie;

(2) Male fides have been alleged only against Shri Gurdial Singh who has since retired and not against Kanwar Shamsher Singh, the present Inspector General of Police who has passed the order if reversion;

(3). The petitioner cannot be made senior to those who had been promoted earlier than him.

With regard to the first point it has to be stated that the powers of this Court under Article 226 of the Constitution are very wide.

This order can be quashed and the respondents can be directed not to act upon It and to treat it as cancelled by a writ of mandamus. In fact apart from the specified writs mentioned in the Article any order or direction can be issued which will do complete justice to the petitioner.

It is; therefore, not possible to accede to the submission of the learned counsel for the respondents that the writ petition should be dismissed on this ground.

With regard to the mala fides, I have not based my judgment on mala fides at all and, therefore, this point is without any merit.

The learned counsel for the respondents, in support of his third point, has belied upon a judgment of their Lordships of the Supreme Court in Mervyn Coutindo and Others Vs. Collector of Customs, Bombay and Others, In that case it was contended that the posts of Principal Appraisers "are selection posts and selection is made from the cadre of Appraisers. For this purpose Appraisers with a minimum service of five years are eligible for promotion and there is probation of two years before they are confirmed. The Union further..contends that by the system of rotation which is being followed in the cadre of Principal Appraisers also what happens is that the seniority of a direct recruit in the cadre of Appraisers is resorted as on account of five years qualification, a direct recruit cannot be promoted to the post of Principal Appraiser while his junior promotee in the post of Appraiser gets such promotion. According to the Union, therefore, this system which is given effect to in the cadre of Principal Appraisers merely restores the seniority which a direct recruit had in the cadre of Appraisers. This is the only justification for the system in the matter of seniority in the cadre of Principal Appraisers". The petitioners in that case prayed that in the matter of appointment of Principal Appraisers, the system at present being followed in the matter of seniority should be struck down. Dealing with these contentions their Lordships observed in para 8 of the report as under:-

We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is, therefore, no question of any quota being reserved from two sources in their cases. The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers'' grade when they are promoted to the Principal Appraisers'' grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers'' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five years'' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers'' grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation, they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers'' grade is a direct recruit or a promotee. This will, as we have already said, be subject to the Government''s right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation.

The ratio of that decision does not apply to the facts of the instant case inasmuch as the question that has arisen in the present case is the carrying out of the order of the Chief Minister which was passed on the representation of the petitioner and to remedy the injustice which had been done to him. In accordance with that order the petitioner had to be given a chance of officiating as Superintendent of Police for six months in order to find out his suitability for that post and for inclusion in the Select List. Inasmuch as he has been deprived of that opportunity in accordance with the order of the Chief Minister, that order has been contravened and the order of reversion, therefore, cannot be sustained. In my opinion, the Inspector-General of Police could not act contrary to the orders of the Chief Minister who was the head of that department at the time the order was made.

For the reasons given above, I hold that the petitioner had been wrongly reverted to his substantive rank of Deputy Superintendent of Police, on the return of Shri Brijinder Singh from leave, and quash that order of reversion. I further direct the respondents to post the petitioner as officiating Superintendent of Police in accordance with the orders of the Chief Minister set out above. The writ petition is consequently accepted with costs. Counsel''s fee Rs. 100/-.