Mumtaz Khan vs State of Rajasthan and Others

Sangeet Raj Lodha, J.—The matter comes up on second stay petition preferred on behalf of the petitioner, however, with the consent of learned counsel appearing for the parties, the matter is finally heard at this stage. This writ petition is directed against order dt. 14.2.2011 passed by the Inspector General of Police (I.G.), Bikaner Range, Bikaner, whereby the representation made by the petitioner against the adverse entry recorded in his Annual Performance Appraisal Report (''APAR) of the year 2006-07 stands rejected. The petitioner has also questioned validity of order dt. 23.6.2008 passed by the Appellate Authority, the respondent No. 3 herein, whereby the order dt. 30.8.2007 passed by the Disciplinary Authority imposing the punishment of withholding of two annual grade increments without commutative effect stands modified and the penalty imposed has been reduced from withholding two annual increments to the penalty of withholding one annual grade increment without cumulative effect. In the alternative, the petitioner has sought direction to the respondent No. 1 to decide the review petition preferred, by him seeking review of order dt. 23.6.2008 ibid. That apart, the petitioner is seeking directions for consideration of his candidature for promotion to the post, Deputy Superintendent of Police ignoring the adverse entry recorded in his APAR of the year 2006-07.

The relevant facts in nutshell are that the petitioner entered the services of the respondent on being appointed on the post of Sub Inspector on being selected by the Rajasthan Public Service Commission. It is submitted that till the year 2006, the petitioner''s entire service record was unblemished and, he was never issued any charge sheet.

In the year 2006, the petitioner was served with a charge sheet under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short ''the CCA Rules'') with allegation that on 12.8.2006, the petitioner failed to reach on the place of incident and thus could not pick the foot prints of the accused. The charge against the petitioner was found proved and, therefore, a penalty of censure was imposed by the Disciplinary Authority vide order dt. 26.12.2006. However, the appeal preferred by the petitioner against the said order, was allowed by the Appellate Authority and accordingly, the penalty imposed was set aside.

The petitioner was served with yet another charge sheet dt. 10.11.2006 with the allegation that in the police station where the petitioner was posted there is pendency of 17.4% cases and thus, the petitioner is guilty for supervisory negligence. The said disciplinary proceedings also culminated in imposition of punishment of censure by the Disciplinary Authority, vide order dt. 31.8.2007, however, the penalty was set aside by the Appellate Authority vide order dt. 18.1.2008.

The petitioner was served with one more charge sheet under Rule 17 of the CCA Rules on 5.6.2007 with the allegation that he did not examine Pakistan''s citizens properly and the report made by him in their respect was improper. The Disciplinary Authority imposed the punishment of censure which also stands set aside by the Appellate Authority vide order dt. 18.1.2008.

The petitioner was served with the fourth charge sheet on 5.6.2007 alleging that while posted at Police Station, Nokha, the petitioner did not register the complaint of one Shri Ram Lal in time and he was asked to come in morning and thus he had to come to the police station time and again. The petitioner submitted reply to the charge sheet, however, the Disciplinary Authority being not satisfied with explanation submitted by the petitioner found him guilty of the charges leveled and imposed punishment of withholding two annual grade increments without commutative effect vide order dt. 31.8.2007. Aggrieved thereby, the petitioner preferred an appeal before the Appellate Authority, which while maintaining the finding of guilt recorded by the Disciplinary Authority reduced the punishment of withholding of two annual grade increments without cumulative effect to withholding of one annual grade increment without commutative effect vide order dt. 23.6.2008. The petitioner preferred review petition before His Excellency, the Governor under Rule of 34 of the CCA Rules, which remained pending till the filing of present writ before this Court.

The predicament of the petitioner is that in the APAR of the year 2006-07, for the period July, 2006 to February, 2007, though the Reporting Officer found the work performance of the petitioner outstanding the Superintendent of Police, Bikaner, assessed his performance as unsatisfactory. The representation made by the petitioner against the adverse entry recorded as aforesaid, was rejected by the Accepting Authority vide order dt. 10.7.2010, which was communicated to the petitioner vide communication dt. 14.2.2011. Hence, this petition.

On 9.10.2012, white admitting the writ petition, this Court passed an interim order in favour of the petitioner in the following terms:

In the meanwhile, the respondents if convene meeting of Departmental Promotion Committee for the purpose of promotion to the Rajasthan Police Services, then, candidature of the petitioner if he is otherwise eligible shall be considered and recommendation of the Departmental Promotion Committee shall be kept in sealed cover.

The petitioner has placed on record the proceedings of the Departmental Promotion Committee convened on 27.5.2013 (Annex. 20), which reveals that the candidature of the petitioner has not been considered for promotion pursuant to the interim order passed as aforesaid, rather the consideration has been defined keeping in view the interim order passed by this Court and one post has been kept vacant.

At the outset, learned counsel for the petitioner submits that the order passed by the Appellate Authority dt. 23.6.2008, maintaining the finding of guilt against the petitioner but reducing the punishment from withholding of two annual grade increments to withholding of one annual grade increment stands set aside by the Reviewing Authority vide order dt. 25.7.2013 and, therefore, the writ petition so far as it relates to the challenge to the order dt. 23.6.2008 (Annex. 10) has rendered infructuous.

Learned counsel submitted that the APARs of the petitioner during his entire services from the year 2001-02 to 2011-12, are either outstanding or very good except for the period 25.7.2006 to February, 2007, wherein the adverse entry was rendered as aforesaid. Learned counsel submitted that out of four charge sheets issued during the year 2006-07, three charge sheets were issued by one Mr. Ashok Rathore, the Superintendent of Police, Bikaner, within a period of 8 months, wherein he was finally ordered to be exonerated. Learned counsel submitted that the adverse entry in APAR of the petitioner for the period in question was entered by the Reviewing Authority District Superintendent of Police, Bikaner, on the basis of the disciplinary proceedings initiated against him, which culminated in imposition of penalties as aforesaid and since all the penalty orders now stand set aside, the adverse entry recorded in his service record solely on the basis of those disciplinary proceedings deserves to be expunged. Learned counsel submitted that the work performance of the petitioner throughout his entire career is assessed either outstanding or very good, and, therefore, it is apparent that the disciplinary proceedings initiated against him and the adverse entry recorded pursuant thereto was actuated by malice.

On the other hand, counsel appearing for the respondents fairly submitted that the fact that adverse entry was recorded in the APARs of the petitioner during the period in question on the basis of the disciplinary proceedings initiated as aforesaid, is apparent from perusal of Annex. 13 dt. 9.8.2007 placed on record. Learned counsel submitted that since the petitioner was found guilty for dereliction of duties, therefore, on overall assessment of his performance the adverse entry recorded by the Reviewing Authority disagreeing with the remark given by the Reporting Officer cannot be faulted with. It is submitted that for the parity of reasons, the rejection of the representation made by the competent authority also cannot be faulted with. Learned counsel submitted that the scope of interference by this Court in the matter of adverse entry in APAR is very limited and the present writ petition does not suggest any special feature warranting interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

I have considered the rival submissions and perused the material on record.

Indisputably, throughout the service career, the petitioners performance has been assessed by the Reporting Officer/Reviewing Authority and Accepting Authority as either outstanding or very good. Even during the year 2006-07, for the period April, 2006 to July 2006, the petitioner''s work performance is assessed to be Very good. It is not in dispute that all the four charge sheets were issued to the petitioner during the span of 8 months and the disciplinary proceedings initiated pursuant thereto in all the matters have culminated in exoneration of the petitioner. It is matter of record that the adverse entry in the APAR of the petitioner of the period 25.7.2006 to February, 2007, were recorded by the Reviewing Authority disagreeing with the assessment made by the Reporting Authority, solely on the basis of the disciplinary proceedings initiated as aforesaid and penalties imposed. In view of the matter, the petitioner having been exonerated and the penalties imposed having been set aside, in considered opinion of this Court, the adverse entry recorded by the Reviewing Authority maintained by the Accepting Authority, rejecting the representation made by the petitioner cannot be sustained and deserves to be expunged. The petitioner deserves to be considered for promotion to the post of Deputy Superintendent of Police, if he is otherwise eligible, ignoring the adverse entry recorded as aforesaid, which is found to be not sustained. In the result, the writ petition succeeds, it is hereby allowed. The order dt. 14.2.2011 passed by the respondent No. 3, rejecting the representation made by the petitioner against the adverse entry recorded in his APAR of the year 2006-07 for the period 25.7.2006 to February 2007, is quashed. The adverse entry recorded in APAR of the petitioner of the period. 25.7.2006 to February, 2007, is directed to be expunged. The respondents are directed to convene the DPC and consider the candidature of the petitioner for promotion to the post of Deputy Superintendent of Police within a period of four weeks from the date of receipt of certified copy of this order. Needless to say that if the petitioner is found suitable for promotion, he shall be accorded promotion with effect from the date person juniors to him have already been promoted pursuant to the recommendations made by the DPC convened on 27.5.2013. No order as to costs.