Harmohinder Singh vs The State of Punjab and others

B.R. Tuli, J.—This judgment will dispose of C.W. 1296 of 1969, Harmohinder Singh v. State of Punjab and Ors. and C.W. 2075 of 1969, Sher Singh v. State of Punjab and Ors. as common questions of law and fact arise in both these petitions.

The facts of C.W. 1296 of 1969 are that Harmohinder Singh petitioner was enlisted as a Selection Grade Constable in the Punjab Armed Police at Jullundur on June 2, 1950. After completing his requisite training, he was posted'' at Jullundur. He was selected for the Cadre Course, which he completed in 1951. Thereafter, the petitioner''s name was brought on list ''C'', and simultaneously therewith he was promoted as a Head Constable. He was awarded 19 merit certificates for the good work done by him and in recognition of his satisfactory record of service, he was confirmed as a Head Constable on November 1, 19(sic). In the return. it is. however, pleaded that he was awarded punishment of censure for telling a lie and forcing a chit to cover his mistake in 1953. He was also placed under suspension, during the year 1962 for assaulting the wife of a constable, but was discharged by the Court in the case brought against him concerning that incident. His name was brought on promotion list ''D'' on December 1 1956, under Rule 139 of the Punjab Police Rules, 1964. (hereinafter referred to as the Rules). Promotion to the post of Assistant Sub Inspector of Police is made from amongst the Head Constables who are brought on list ''D'', after having passed the Intermediate School Course. The petitioner was promoted to the rank of Assistant Sub- Inspector of Police on October 15, 1957. The petitioner was thereafter promoted as an officiating Sub-Inspector of Police on December 13, 196(sic). Usually, only those Assistant Sub Inspectors of Police are promoted as officiating Sub-Inspectors of Police whose names are borne on promotion list ''E''. The petitioner has alleged in Para 8 of the petition:

The petitioner, on account of his good record of service, was promoted as a Sub Inspector on the 16th of December, 1960. It is presumed that this promotion was in accordance with the rules and that his name had already been brought on list ''E''. In fact, by virtue of the orders of promotion, the petitioner concluded that his name had already been placed on list ''E''.

The contents of para 8 of the petition are admitted in the written statement from which it is concluded that the name of the petitioner had been brought on promotion list before he was promoted as officiating Sub Inspector. By an order, issued from the office of the Deputy Inspector General, Punjab Armed Police, Jullundur Cantonment dated May 13, 1969, the petitioner was reverted to his substantive rank of Head Constable with effect from May 8, 1969. The petitioner then filed the present writ petition challenging the order of his reversion and for a declaration that he has continued as a Sub Inspector of Police. The other relief claimed by the petitioner is that it should be declared that he should be deemed to have been made a permanent Sub Inspector with effect from the date the person junior to him was confirmed and that he should be held entitled to his seniority amongst the Sub Inspectors on the basis of his date of confirmation. respondents 3 to 14 are officiating Sub Inspectors of Police, who are alleged by the petitioner to have been his juniors but who have been retained in the officiating rank of Sub Inspector of Police while the petitioner has been reverted.

Written statement has been filed only on behalf of respondent 2, in which it has been stated:

Normally promotion to the higher posts are made from amongst the persons whose names are borne on one of the promotion lists but exceptions cannot be ruled out altogether on the basis of special considerations/achievements or in case of a promotion list having been exhausted and a vacancy is to be filled up otherwise by promotion of a suitable officer whose name though has not been brought on promotion list. Similarly, the petitioner along with 66 other A.S.I.''s was promoted as officiating Sub Inspector against 46 temporary posts of Sub Inspectors sanctioned under the Border Re organisation Scheme with effect from 13th December, 1960.

To another place, it is stated that-

Respondents No. 3, 4 and 5 have since been reverted, whereas the remaining respondents from 6 to 14 are better qualified than the petitioner and Respondent No. 8 is senior as well.

At another place, it is explained that-

respondents 6 to 14 had better qualifications including the passing of training courses.

It has also been stated that the petitioner was reverted to his substantive rank of Head Constable for want of vacancies and because the post of Assistant Sub Inspector has "now" been abolished. It is however, not explained from which date the post. of Assistant Sub Inspector in the Punjab Armed Police has been abolished and under what rule or instructions.

It has been conceded by the learned Deputy Advocate General, on behalf of respondents 1 and 2 that the Punjab Armed Police is governed by the same Punjab Police Rules which govern the Civil Police. In fact both the wings of the Civil Police and the Armed Police are under the same Inspector General of Police and their personnel is also inter-transferable. Many a time transfers are made from the Civil Police to the Armed Police and vice versa. Under Rule 13.9 of the Rules, the name of a Head Constable is brought on list ''D'' after he has passed the Intermediate School Course and thereafter he is given a chance of officiating promotion as Assistant Sub Inspector of Police to test his suitability for the post. If he is found suitable, he is promoted as Assistant Sub Inspector of Police, on probation and after he successfully completes his probation period, he is confirmed as Assistant Sub Inspector of Police. Thereafter under Rule 13.10 promotion list ''E'' is maintained of those Assistant Sub Inspectors of Police who are considered fit to be given independent charge of a Police Station and are to be considered for promotion as Sub Inspectors of Police. They are first appointed as officiating Sub Inspectors, then Sub Inspectors on probation and thereafter confirmed as Sub Inspectors of police. Although Rule 1310 does not prescribe the passing of the Upper School Course as a requirement for appointment to the post of officiating Sub Inspector of Police, the usual practice under the instructions issued in pre partition days is that the Assistant Sub Inspectors are sent for the Upper School Course and after they successfully complete it, their names are brought on list ''E''. The power is retained with the Inspectors General of Police to exempt Assistant Sub Inspectors of Police from passing the Upper School Course in a fit case. It is, therefore, not understood how in the Punjab Armed Police the post of Assistant Sub Inspector of Police could be abolished and the Head Constable can be directly promoted as Sub Inspector of Police without being promoted the confirmed as Assistant Sub Inspector of Police.

The relative merit of respondents 3 to 14 qua the petitioner had to be considered on the basis of suitability at the time of reversion The petitioner had served as officiating Sub Inspector of Police for nearly 8 1/2 years before he was reverted whereas respondents 3 to 14 had been promoted as officiating Sub Inspectors much later to in the petitioner and were junior to him in the rank of Assistant Sub Inspector of Police as well as in the earlier ranks of Head Constable etc. Form the comparative statement of service record filed as an annexure to the written statement, it is not at all clear how respondents 3 to 14 had batter qua1ification and what training courses they had passed which the petitioner had not petitioner''s name has been shown to have been brought on list ''D'' with effect from December 1, 1956, while the names of respondents 4, 7, 9, 10 and 14 were brought on list ''D'' with effect from April 1, 1967. The names of other respondents were never brought on list ''D'' and curiously enough the names of respondents 12 to 14 are stated to have been brought on list ''E'' with effect from January 1, l967 without having been brought on list ''D'' The educational qualification of respondent 3 is that he as read up to Higher Secondary, respondents 4, 7, 9 and 11 are Matriculates while respondents 5, 8 and 10 have read up to 9th Class respondents 6 and 12 have read up to 8th Class, respondent 13 has read up to only 14th Class while respondent 14 is illiterate. From these educational qualifications it cannot be said that respondents 3 to 14 had better qualifications than the petitioner who had also read up to 9th Class. No other special qualifications of respondents 3 to 14 except respondent 8 have been mentioned or explained. With regard to respondent 8, it has been explained in a supplementary affidavit that he had qualified in the line of Mechanical. Transport from Army School, Faizabad (U.P.] and is "working against the post of Sub Inspector sanctioned for imparting training in driving and maintenance course which is a specialised job." The petitioner, admittedly, does not possess this qualification With regard to the assertion that the names of some of the respondents had not been brought on list ''D'' it has been stated with regard to respondent 8, that "the promotion is permissible even though he is not borne on lists ''D'' and ''E'' vide I. G''s instructions contained in his memo No. 4123/29/C dated 25th April, 1962." Since these instructions, run counter to the rules, they cannot be upheld, in any case, some justification could be pleaded in favour of respondent 8 for retaining him in service because of his technical qualifications which the petitioner and other respondents do not possess but there seems to be no justification for retaining respondents 3 to 7 and 9 to 14 in service as officiating Sub Inspectors of Police while reverting the petitioner. It has also been stated in the written statement that respondent 8 is senior to the petitioner.

Rule 13.1 of the Rules prescribes that promotion from one rank to another and from one grade to another in the same rank shall be made by selection tempered by seniority and that efficiency and none sty shall be the main factors governing selection. Specific qualifications, whether in the nature of training courses passed or practical experience, shall he carefully considered in each case and when the qualifications of two officers are otherwise equal, the senior shall be promoted. When the petitioner was promoted as officiating Sub Inspector of Police, it is presumed that he had been found fit for that promotion and he was not reverted on the ground that he had become unsuitable or his efficiency and honesty had deteriorated. respondents 3 to 14 were promoted in the ranks of Head Constable, Assistant Sub Inspector and Sub Inspector; a number of years later than the petitioner. The possible exception of respondent 8 is that he was promoted as officiating Head Constable and confirmed in that post earlier than the petitioner, but he got his promotion as Assistant Sub Inspector of Police Sub Inspector of Police on December 21, 1960, and September 21, 1963, respectively, whereas the petitioner was promoted as Assistant Sub Inspector of Police and Sub Inspector of Police on October 15, 1957, and December 13, 1960 respectively In the case of a promotion, selection has to be made on merit keeping in view seniority and once an officer is promoted, it is to be presumed that he was found fit for promotior. At the time of reversion, the juniormost officer has to he reverted first and the selection cannot be made from amongst the officiating personnel on the basis of relative merit unless it is found in the case of a senior officer that he had become unsuitable or his efficiency and honesty had deteriorated after he was given the officiating chance. I regret I cannot agree to the submission of the learned counsel for respondents 1 and 2 that the employer has the choice of selecting his employees. This rule does not apply to Government servants for whose service specific statutory rules have been framed. Under the statutory rules no arbitrary powers can be presumed to exist in favour of the appointing authority or the Head of the Department. The executive power has to be exercised justly and fairly, so that all the Government servants are treated alike, which is their fundamental right guaranteed by Article 16 of the Constitution The reversion of a senior officer, while a junior officer is retained in the officiating rank affects his rank, status, emoluments and further chances of promotion and is thus punitive in character although it has not been made by way of punishment. Nevertheless, evil consequences follow and in order to avoid that the well-known principle of "last come first go" has to be followed in the case of reversion. At the risk of repetition. I wish to emphasise that the appointing authority has the power to select from amongst the eligible candidates the best man available who may not be the senior most man at the time of appointment or promotion but at the time of reversion, the senior man will be reverted only it he has not been found suitable for the officiating post or after occupying that post his efficiency and. honesty have deteriorated. This principal have not been followed by respondent 2 while reverting the petitioner in the present case. The. order passed by him smacks of arbitrariness and favouritism In fact, the assertion on behalf of respondent in his written statement that "exceptions cannot be ruled out altogether on the basis of special considerations/achievements" gives a clue how he acted while passing the order of reversion. Not only was relative merit not considered but other "considerations" prevailed with him, which other considerations have not been explained in the written statement. The order also does not contain any reason for reverting the petitioner while retaining his juniors in service. The only reason given is for want of vacancy and for this reason the juniormost officiating Sub Inspector should have been reverted.

For the reasons given above, I accept this writ petition with costs and quash the order reverting the petitioner from the post of officiating Sub-Inspector of Police to that of Head Constable with effect from May 8, 1969 respondent 2 shall, however, be at liberty to decide the matter afresh in accordance with the Rules and the observations made above. Counsel''s fee Rs. 100.00. C.W. 2075 of 1969.

The facts of this case are that the petitioner was enlisted as a. Constable in the Punjab Armed Police at Lahore on 15th October, 1940, After he had completed his training he was confirmed as a Constable after the expiry of three years. He completed Cadre Course in 1943 and was promoted to the post of temporary Head Constable on April 1, 1947. He was further promoted to the post of Assistant Sub- Inspector of Police on April first 1948 He was confirmed as a Head Constable on November 23, 1950. He was reverted to the post of Head Constable on April 9. 1952, though promoted as Assistant. Sub Inspector of Police on the same date. He was again reverted as Head Constable with effect from September 1, 1952 and was promoted as officiating Assistant Sub-Inspector with effect from December 1, 1956. He was further promoted as officiating Sub-Inspector of Police with effect from December 13, l960, and was reverted from that post to the rank of Head Constable, by respondent 2, by his order dated May 12, 1969, issued on May 13, 1969. with effect from the date he returned from leave. The petitioner was on 120 days leave when the order was passed. He has challenged his reversion on the same grounds as have been urged by Harmohinder Singh in C.W. 1296 of 1969 as the impugned order is the same in both the cases.

The petitioner has stated that respondents 3 to 8 to the writ petition are junior to him who have been retained in service while he has been reverted. All these respondents except Karam Chand, respondent 4, are respondents to the writ petition of Harmohinder Singh also.

For the reasons given above, the order of reversion of the petitioner is also liable to be quashed. I accordingly accept this writ petition with costs and quash that order. respondent 2, shall, however, be at liberty to decide the matter afresh in accordance with the Rules and the observations made above. Counsel''s fee Rs. 100.00.