Lal Singh vs State of Punjab

Daya Chaudhary, J. - The prayer in the present petition is for issuance of a writ in the nature of certiorari for quashing of impugned orders dated 26.08.2009, 27.04.2010, 19.11.2012/22.11.2012 and 09.07.2013 (Annexures P-10, P-11, P-12 and P-13, respectively), whereby, the claim of the petitioner for promotion to the post of Head Constable, ASI and SI has not been considered.

A further prayer has also been made for issuance of a writ in the nature of mandamus directing the respondents-Department to promote the petitioner with effect from the date his promotion became due after passing the Lower School Course/B-1 Test in the year 1992 along with all consequential benefits arising out of order of promotion.

Briefly, the facts of the case, as made out in the present petition, are that the petitioner was appointed as Constable in the respondents-Department in the year 1981. He was discharged from service under Rule 12.21 of the Punjab Police Rules (here-in-after referred to as the `PPR'') vide order dated 19.01.1984. The said order was challenged by way of filing an appeal, where after, he was re-instated in service without back wages and was assigned duties in Punjab Armed Police (here-in-after referred to as the `PAP''). Thereafter, a departmental inquiry was initiated against him after his joining duties in PAP and a show cause notice was also issued to him and his five years'' of approved service was forfeited vide order dated 16.06.1988. However, by taking a lenient view, the Commandant reduced the said punishment from five years to two years vide order dated 14.02.1989. In the meanwhile, on 28.02.1992, B-1 written test was held for promotion from the post of Constable to Head Constable, which was duly cleared by the petitioner but he was not included in the parade because of punishment awarded to him having commenced on 14.02.1989. The petitioner, thereafter, filed CWP No.3709 of 1992 and he was sent for Lower School Course commencing from 16.08.1992 which was duly passed by him. In the said petition, the petitioner was deputed to undergo Lower School Course while deciding Civil Misc. Application No.1 of 1992. Ultimately, the said petition was dismissed vide order dated 20.04.1993 by this Court and the same was challenged by way of filing LPA No.491 of 1993 which was also dismissed. However, liberty was given to the petitioner to avail remedy available under Rule 13.8-A of the PPR vide order dated 19.03.2001. By taking a lenient view, the Deputy Inspector General of Police, PAP, Chandigarh passed order on 19.03.2002 for punishment of condemnation to the employee instead of punishment of forfeiting two years of service. The said order was challenged by the petitioner before the Inspector General of Police, whereby, the order dated 19.03.2002 passed by the Deputy Inspector General of Police was set aside and the earlier order dated 14.02.1989 passed by the Commandant i.e forfeiture of two years of temporary service was restored. The petitioner filed revision petition against the order dated 29.11.2002 before the Director General of Police and the order passed by the Inspector General of Police dated 29.11.2002 was set aside by observing that the petitioner had been punished twice for single offence and the order passed by the Deputy Inspector General dated 19.03.2002 was confirmed. The petitioner, thereafter, made a request for promotion but the same was rejected vide order dated 26.08.2009. The claim was further rejected by the Director General of Police vide order dated 27.04.2010 (Annexure P-11) on the ground that the petitioner was having no right for promotion as Head Constable. Thereafter, the appeal filed by the petitioner before Home Secretary for promotion with deemed date was also rejected vide order dated 09.07.2013 (Annexure P-13).

Learned counsel for the petitioner has challenged the above said impugned orders by raising various grounds. He submits that junior to the petitioner, namely, Jagroop Singh, has already been promoted as Sub Inspector and the petitioner is entitled for promotion since his junior has been promoted. Learned counsel also submits that the petitioner is entitled for promotion as well as all consequential beneftis as he has cleared B-1 written test and also the Lower School Course, which is required for further promotion to the post of Head Constable and thereafter, ASI and SI. The benefits to the petitioner have been withheld for indefinite period and as such, the impugned orders are liable to be set aside. Learned counsel also submits that as per Rules 13.7 and 13.8 of the PPR, only those candidates are to be promoted as Head Constables who are allocated for the Lower School Course after passing the test. The petitioner is having 20 years of service to his credit and he has been dis entitled for any promotion in spite of passing B-1 test and Lower School Course. At the end, learned counsel for the petitioner submits that no major punishment was awarded to the petitioner and still, he has not been granted the benefit of promotion. He has been in continuous service as ad hoc Head Constable since 1992 and his rights for promotion cannot be taken away.

Learned counsel for the respondent-State opposes the submissions made by learned counsel for the petitioner and submits that the petitioner was not entitled for B-1 test as he was awarded major punishment and even the writ petition as well as LPA filed by him were dismissed by this Court.

Heard the arguments of learned counsel for the parties and have also perused the impugned orders as well as other documents available on the file.

The facts relating to total length of service and punishment awarded to the petitioner are not disputed. The orders passed by the punishing authority/appellate authority as well as reviewing authority are also not disputed. It is also not disputed that the petitioner has passed the B-1 test, which is necessary to be cleared for further promotion. After passing Lower School Course, the name of the petitioner was brought on List C-1 in view of provisions of Rule 13.8 of the PPR which shows that the petitioner became eligible to be promoted to the next post i.e Head Constable. It is also not disputed that the order of forfeiture of five years'' service was reduced to two years and the same was also set aside and as such, the petitioner became entitled for further promotion as per provisions of Rule 13.8 of the PPR on clearing B-1 test. Even the allocation was also done after clearing the test. Rules 13.1, 13.7, 13.8 and 13.9 of the PPR are reproduced as under :-

"13.1 Promotion from one rank of another

(1) Promotion from one rank to another, and from one grade to another in the same rank, one grade to another in the same rank, shall be made by selection tempered be the main factors governing selection. Specific qualifications, whether in the nature of training courses passed or case. When the qualifications of two officers are otherwise equal, the Senior shall be promoted. This rule does not affect increment within a time-scale.

(2) Under the present constitution of the Police force no lower subordinate will ordinarily be entrusted with the independent conduct of investigations or the independent charge of a police station or similar unit. It is necessary, therefore, that well-educated constables, having the attributes necessary for bearing the responsibilities of upper subordinate rank, should receive accelerated promotion so as to reach that rank as soon as they have passed the courses prescribed for, and been tested and given practical training in, the ranks of constable and head constable.

(3) For the purposes of regulating promotion amongst enrolled police officers six promotion lists- A, B, C, D, E and F will be maintained.

Lists A, B, C, and D shall be maintained in each district as prescribed in rules 13.6, 13.7, 13.8 and 13.9 and will regulate promotion to the selection grade of constables and to the ranks of head constables and assistant sub-inspector. List E shall be maintained in the office of Deputy Inspector-General as prescribed in sub-rule 13.10 (1) and will regulate promotion to the rank of sub-inspector. List F shall be maintained in the office if the Inspector-General as prescribed in sub-rule 13.15(1) and will regulate promotion to the rank of inspector.

Entry in or removal from A, B, C, D or E lists shall be recorded in the order book and in the character roll of the police officer concerned. These lists are nominal rolls of those officers whose admission to them has been authorised. No actual selection shall be made without careful examination of character rolls.

(4) Nothing contained in these rules shall affect reservation and other concessions Required to be provided for Scheduled Castes and other Backward Classes in accordance with the orders issued by the State Government in this regard, from time to time, under clause (4) of article 16 of the Constitution of India.

13.7 Selection of candidates for admission to courses at the Police Training College.

(1) List B (in Form 13.7) shall be maintained by each Superintendent of Police, it shall include the names of all Constables selected for admission to the Lower School Course to be held at the Police Training College.

Selection to the list B shall be made in the month of January each year and shall be limited to the number of seats allotted to the district for the Year. The number of seats in Lower School Course in a year shall be created within one year in the respective unit. 55% of the seats allotted to a unit in the Lower School Course shall be filled in on the basis of a competitive examination. 35% on the basis of seniority-cum-fitness and 10% on the basis of consistent outstanding performance in job/obtaining Gold or Silver Medal in All India Police Games/Duty Meet/National Games or exceptional display of bravery during the course of performance of official duty. Selection of persons against 55% seats in B list/Lower School on the basis of merit shall be done by a Departmental Promotional Committee on the basis of-

(i) Examination of service record; and

(ii) a competitive test (hereinafter called "B-I test) in, -

(a) Parade;

(b) law and practical police work, and

(iii) an interview,

(2) (i) All constables irrespective of their educational qualifications shall be eligible to appear for B-1 test if they are under the age of 35 years and have completed five years of service the first day of January of the year in which selection is made. However, if the constable belonging to reserve categories who is recruited after attaining the age of 27 years as per Govt. instructions/orders then he shall be allowed to appear for minimum three consecutive chances after compilation of five years of service even if he has crossed the age of 35 years upto maximum of 40 years of age.

(ii) All constables irrespective of their educational qualifications shall be eligible to be brought on list B-1, seniority-cum-merit basis if they are under the age of 40 years and completed five years of service on the first day of January of the year in which selection is made.

(iii) All constables irrespective of their educational qualifications shall be eligible to be brought on list B-1 on the basic of consistent outstanding performance in job/obtaining gold or silver medal in All India Police Games/Duty Meets/National and International Games or exceptional display of bravery during the course of performance of official duty if they are under the age of 40 years and have completed two years of service on the first day of January of the year in which selection is made. Only those constables shall be brought on list B-1 after two years of service, but before five year of service who have won the medal in International Sports events like Olympics, Asian Games, Commonwealth Games or similar International events. Constables who have won medals in National Games/All India Police Games/Duty Meets and who are being considered for exceptional bravery or consistent outstanding performance shall be considered only if, they have put in the minimum five year of service.

(3) The Departmental Promotion Committee for conducting the B-I test for each district/battalion shall be constituted by the Director General of Police and shall consist of an officer of the rank of Superintendent of Police of the concerned unit and two officers of the rank of Deputy Superintendent of Police. Out of which one shall be from the same district or unit and other from outside. The members of the Departmental Promotion Committee shall be announced only 24 hours before the examination. The minimum pass marks individually in written and parade test shall be 50%. Only those constables who have obtained 50% marks both in written test and parade separately shall be interviewed by the Board, the marks for the interview shall be 10.

(4) The assessment of service record will be done on the basis of education, training courses passed and commendation certificate during the service. The marks assigned to these shall be as follows:--

(I) Education:

Class

Marks

Upto Matric

NIL

10+2

02

BA-I

03

BA-II

04

BA

05

Post Graduate

08

(II) Courses passed:

1

For training courses of less than two weeks duration

NIL

2

For training courses of two weeks duration

0.5 Marks

3

For training courses of duration exceeding 2 weeks but not exceeding 4 weeks

1 Mark

4

For training courses of duration exceeding 4 weeks but not exceeding 6 weeks

1.5 Marks

5

For training courses of duration exceeding 6 weeks but not exceeding 8 weeks

2 Marks

6

For training courses of duration exceeding 8 weeks but not exceeding 12 weeks

3 Marks

7

For training courses of duration exceeding 12 weeks but not exceeding 16 weeks

4 Marks

8

For training courses of duration exceeding 16 weeks but not exceeding 20 weeks

5 Marks

9

For training courses of duration exceeding 20 weeks

6 Marks

Maximum marks awarded for training programme underwent shall be -

Only the training programmes passed by the candidates upto 31st December of the year preceding the year in which selection is made shall be taken into account while awarding marks.

(iii) Commendation Certificates:-

1

Class I Commendation Certificate

3 Marks

2

Class II Commendation Certificate

2 Marks

3

Class III Commendation Certificate

1 Mark

Total marks to be awarded for commendation certificates shall not exceed 15. Commendation granted upto 1st July of the previous year only shall be taken into consideration for counting the marks.

(iv) Constables who obtain all round 1st and 2nd positions in the Basic Recruit Course specified under rule 19.2, shall be awarded 7 and 5 marks respectively.

(5) The Syllabi for written test comprising of 60 marks shall be the same as prescribed for Basic Recruit Course of Police Training College, Madhuban.

(6) The question paper for written test shall be set by an officer/officers/committee authorised in this regard by the Director General of Police. The test shall consist of two parts - a practical of 15 marks on scientific aids to investigation and scene of crime examination and a written test of 45 marks. The Superintendent of Police heading the Departmental Promotion Committee for B-1 test shall select one question paper out of 3 question papers provided to him in sealed covers, one hour before the examination and shall get the necessary number of question papers photocopied/cyclostyled under his personal supervision. The Superintendent of Police incharge of Departmental Promotion Committee shall provide answer sheets with fictitious roll numbers and have the answer sheets evaluated under his personal supervision.

(7) The parade test shall be evaluated as under:-

(i) Turn Out

3 Marks

(ii) Personal performance in rifle exercise

3 Marks

(iii) Personal performance in squad drill

3 Marks

(iv) Word of command

3 Marks

(v) Ability to give squad drill instructions

3 Marks

(vi) Endurance Test 1500 meters run within 7 minutes

5 Marks

Total

20 Marks

(8) For selection of 35% candidates on the basis of seniority-cum- fitness as mentioned in sub-rule (I) above, separate Departmental Promotion Committee for each Battalion/District shall be constituted by the Inspectors General of Police/Deputy Inspectors General of Police, Range. The Departmental Promotion Committee so constituted shall consist of the Superintendent of Police incharge of the district/battalion and two Deputy Superintendent of Police. They shall select the names as per seniority-cum-fitness keeping in view Rule 13.1

The Departmental Promotion Committee shall grant marks in this category for service records on the same basis as mentioned in sub-rule(4) above. Further marks shall also be awarded for the length of service as on 1st January of the year as under:-

5 year to 10 year service

Maximum 10 marks at the rate of 2 marks for each completed year of service after 5 years.

10 Years to 20 years service

Maximum 24 marks at the rate of 2 marks for each completed year of service after 5 years.

In case the Exemptee Head Constables who are promoted in view of Director General of Police standing order No. 76/2000 dated the 28th March, 2000 and are willing for admission to their names to list B-1 according to seniority-cum-fitness in view of their consequential reversion then they can do so in their own interest provided they give their consent in writing.

(9) Various units shall be allotted only 90% of total seats of the year for list B and candidates for 10% seats common to all units shall be selected by Central Departmental Committee. For selecting 10% of the candidates on the basis of consistent outstanding performance in job/attaining Gold or Silver Medal in All India Police Games/Duty Meet/National Games or exceptional display of bravery in the job, each unit shall send its recommendation through the concerned Inspectors General of Police/Deputy Inspectors General of Police to the Central Departmental Promotion Committee to be appointed for the entire State by the Director General of Police. These 10% seats shall be filled in on the basis of State level comparative merit of candidates sponsored by the units as above on the recommendation of the State level Departmental Promotion Committee. Such candidates recommended by the above Departmental Promotion Committee shall be assigned to various units for inclusion in list B against 10% quota irrespective of the unit to which the candidate originally belongs.

(10) Marks at the following rate shall be reduced for every major/minor punishment while calculating marks for both categories of competitive examination and seniority:--

For every major punishment 5 marks

For every minor punishment 2 marks

For every censure, 1 mark

The total marks to be deducted for punishment shall not exceed 25. The major/minor punishment considered for deduction of marks shall only be those which have been awarded on or before the 1st day of July of the year preceding the year in which selection is made.

(11) If at the time of selection for admission in list B-1, the score of two constables is found to be equal, they the constable who is senior in service shall be selected for admission to list B-1. Further, in case, two constables who have equal scores and the same seniority, then the constable who is higher inter-se-merit in the recruits course shall be brought on list B-1.

(12) Government policy on reservation in promotion, if any, shall be followed while selecting persons for list B under 55% merit quota as well as for 35% quota for seniority-cum-fitness. However, the same shall not apply for the 10% category meant for out of turn promotion on the basis of outstanding performance in job, All India Police Games/Duty Meet/National Games and for exceptional bravery. Posts unfilled in this section in a year shall lapse:

Provided that no constable during the period when he is undergoing punishment shall be eligible for entry into promotion list B. For inclusion in list B against 35% seats reserved for seniority-cum-merit officials having two or more major punishments in their service career shall be debarred from being considered for promotion list B.

(13) The names of all officials who are on promotion list B or C shall be automatically removed from list B or C subject to Rule 13.8 A on award of a major punishment.

(14) A Departmental Promotion Committee headed by the Superintendent of Police/Commandant of the concerned district or unit and consisting of two Deputy Superintendents of Police shall prepare list B-1. Provided that list B-1 shall not be final until the same is approved by the Inspector General of Police/Deputy Inspector General of Police, who is the controlling officer of the said Superintendent of Police or Commandant. The Inspector General of Police/Deputy Inspector General of Police shall accord his approval only after due scrutiny of the list about its correctness. He will also be competent to refer the list back to the Superintendent of Police or Commandant form whom it had been received for correction of errors/omission, if any, in the list and will also be competent to seek clarification about some points from the Departmental Promotion Committee if he considers necessary.

13.8 List C. Promotion to head constables.

(1) In each district a list shall be maintained in card index from (form 13.8 (1) of all constable who have passed the Lower School Course at Phillaur and are considered eligible for promotion to Head Constable. A Card shall be prepared for each constable admitted to the list and shall contain his marking under sub-rule 13.5 (2) and notes by the Superintendent himself, or furnished by Gazetted Officers under whom the constable has worked, on his qualifications and character. The list shall be kept confidentially by the Superintendent and shall be scrutinised and approved by the Deputy Inspector-General of Police at his annual inspection. (2) Omitted vide Hr. Govt. & Home Deptt. Notification No. No. S.O. 92/P.A. 5/1861/S, 2 and 7/2001 dated 28-6-2001.

13.8-A Disqualification for admission to or retention in Lists A, B or C.

(1) The infliction of any major punishment shall be a bar to admission to or retention in lists A, B or C, provided that (a) for special reasons to be recorded by the Superintendent in each case and subject to confirmation by the Deputy Inspector- General, this disqualification may be waived and (b) after six months'' continuous good conduct in the case of censure or confinement to quarters or on expiry of the period of reduction in the case of reduction for a specified period, a constable may be re-admitted at the discretion of the Superintendent.

(2) Gazetted officers shall look out for, and encourage their inspectors and sub-inspectors to bring to notice, constables who, by reason of their general character and ability or of special acts, are suited for inclusion in lists A, B or C, and shall, after satisfying themselves by necessary enquiries, make suitable recommendations to the Superintendent.

13.9. List D. Promotion to assistant sub-inspectors.

(1) A list shall be maintained in each district in card index Form 13.9(1) of those head constables who have passed the lower school course and the Intermediate school course at the Police Training School and are approved by the Deputy Inspector- General as eligible for officiating or substantive promotion to the rank of assistant sub-inspector. No head constable shall be admitted to this list who is not thoroughly efficient in all branches of the duties of a constable and head constable and of established integrity.

(2) Officiating promotion to the rank of assistant sub-inspector shall be made from the list prescribed in sub-rule (1), as far as possible in rotation, so as to give each man a trail in the duties of the higher rank. Substantive promotion shall be made by the deputy Inspector-General in accordance with the principles prescribed in rule 13.1, and officiating promotion shall be made in accordance with sub rule 13.4(2).

(3) Half-yearly reports in Form 13.9(3) on all head constables in this list shall be furnished on the 15th April and the 15th October, to the Deputy Inspector-General."

The order of forfeiture of service was set aside by the Additional Secretary, Department of Home Affairs. Thereafter, nothing remains against the petitioner as he was allocated B-1 Test as well as Lower School Course by the department. While dismissing LPA of the petitioner, the liberty was granted to him to approach the concerned authority. Thereafter, he approached the Additional Secretary and Director General of Police and the punishment of forfeiture of service was set aside. On perusal of orders passed by the authorities, it appears that all orders passed by the authorities have culminated into the last order passed by the Additional Secretary, Department of Home Affairs. When the order passed by the Inspector General of Police has been set aside by the Additional Secretary vide his order dated 15.09.2004 (Annexure P-9) then the petitioner became entitled for promotion. The relevant portion of the order passed by the Additional Secretary, Department of Home Affairs and Justice, is reproduced as under :-

"2. After filing an appeal by him, Deputy Inspector General of Police, PAP, Jalandhar Cantt. reinstated him in the service vide his Order No.262/S.T. dated 28.05.1985. At this Commandant, 36 Battalion, PAP, Bahadargarh, Patiala again started departmental inquiry against the above said employee and sent conclusion report to Commandant, 82 Battalion, PAP, Bahadargarh. At this Commandant, 82 Battalion, PAP, Bahadargarh, while taking lenient view, forfeited his two years proposed services on temporary basis instead of forfeiting his proposed services for five years on permanent basis as recommended in the Show Cause Notice. At filing the appeal by the appellant against these orders, Deputy Inspector General, PAP, Jalandhar Cantt. vide dated 19.03.2002, changed the punishment vide which the services of constable Lal Singh No.82/391 were forfeited for two years on temporary basis and his punishment was changed in punishment of condemnation. The applicant filed an appeal to Inspector General, PAP, Jalandhar Cantt. against the order dated 19.03.2002. Inspector General, PAP, Jalandhar Cantt. set aside the order dated 19.03.2002 passed by the Deputy Inspector General, PAP and reinstated the orders dated 14.02.1989 passed by the Commandant, 82 Battalion. The appeal filed by him to Director General of Police, Punjab was dismissed vide Appeal Memo No.15077/E-1 dated 25.03.2003 after consideration of same.

After that, at filing the Mercy Appeal by Head Constable Lal Singh No. 82/391 in this case, he was heard and his record was perused. It was found that this employee was discharged from the service for his one offence and at this he filed an appeal to Deputy Inspector General, PAP, Jalandhar Cantt. and Deputy Inspector General, PAP, Jalandhar Cantt. reinstated him in service vide order dated 28.05.1985 but his time which was out of service, was considered as without pay. Therefore, for the same offence, Commandant 82 Battalion, PAP, Bahadargarh, Patiala forfeited his two years approved service on temporary basis. Vide Deputy Inspector General, PAP, Jalandhar Cantt. orders dated 19.03.2002, his punishment was decreased and same was changed in punishment of condemnation and Inspector General of Police, Chandigarh vide order dated 28.05.1985 reinstated the orders dated 14.02.1989 passed by the Commandant 82 Battalion, PAP, Bahadargarh.

While taking in view above said situation and facts, it is found that this employee has been given double punishment for one offence. Therefore, while setting aside the orders dated 29.11.2002 passed by Inspector General, PAP, Jalandhar Cantt., Order No.2627/S.T. dated 28.5.1985 (Vide which applicant was reinstated in the services) passed by the Deputy Inspector General, PAP, Jalandhar Cantt. is reinstated and confirmed."

It has specifically been mentioned in the above order that the petitioner was discharged from service for the offence and thereafter, he filed an appeal to the Deputy Inspector General, PAP, Jalandhar Cantt. and was reinstated vide Order dated 28.05.1985. The period during which he was out of service, was considered as without pay. For the same offence, the Commandant 82 Battalion, PAP, Bahadargarh, Patiala forfeited his two years approved service on temporary basis. The punishment awarded to the petitioner was converted to punishment of condemnation vide order dated 19.03.2002 and the Inspector General of Police, Chandigarh, vide order dated 28.05.1985 reinstated him. It has also been mentioned that the petitioner has been awarded double punishment for the same offence and as such, while setting aside order dated 29.11.2002 passed by the Inspector General of Police, PAP, Jalandhar Cantt., order dated 28.05.1985 (vide which the petitioner was reinstated in service) passed by the Deputy Inspector General, PAP, Jalandhar Cantt. was confirmed.

It has been held in various judgments of Hon''ble the Apex Court as well as of this Court that on completion of period of penalty, the petitioner becomes entitled for promotion and as such, the right of promotion cannot be denied. He was given forfeiture of two years'' service and that period had already elapsed. Moreover, junior to the petitioner, namely, Jagroop Singh has also been promoted.

Same view was held in the judgment of Division Bench of this Court in Onkar Dutt Sharma v. Uttar Haryana Bijli Vitran Nigam Limited and others 2007(1) SLR 733.

Similarly, in another judgment of Madras High Court in case V. Janakiraman v. Union of India and others 2016 LIC 1901, it has been held that the claim of employee cannot be denied only on the ground of imposition of minor penalty of withholding of annual increment without cumulative effect. On completion of period of penalty, the employee becomes entitled to the benefit and the petition was allowed in his favour. It has also been held that during the period of currency of minor penalty, an employee cannot claim promotion as a matter of right but on expiry of period of punishment, the petitioner has a right to be considered and he is entitled for the promotion, if otherwise eligible.

In view of the facts as well as law position as discussed above, the present petition is allowed and the impugned orders dated 26.08.2009, 27.04.2010, 19.11.2012/22.11.2012 and 09.07.2013 (Annexures P-10, P-11, P-12 and P-13, respectively) are set aside. The petitioner is held entitled for the consequential benefits. The respondents are directed to consider the case of the petitioner for promotion from the date his junior has been promoted within a period of two months from the date of receipt of certified copy of this order.