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Kundan Lal Vij Vs. Delhi Administration and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 147 of 1967
Judge
Reported inILR1970Delhi493
ActsPunjab Police Rules, 1934
AppellantKundan Lal Vij
RespondentDelhi Administration and ors.
Advocates: F. Anthony,; C.L. Talwar,; O.P. Malhotra and;
Cases ReferredMysore v. S. Raghavendrachar
Excerpt:
punjab police rules (1934)--chapter xiii--rules 13.10, 13.15 and 13.16(1)--list e&f--administrative instructions--promotion made under --not inconsistency between the rules and administrative instructions--promotions held valid--principle of natural justice--violation of--petitioners name removed from list f--opportunity to show cause not given--orders removing names, held invalid.; rule 13.10 does not prohibit the selection of persons, such as stenographers who arc not assistant sub-inspectors for appointment to the posts of sub-inspectors (clerical). ; where in the instant case, there was no provision in the police rules regarding the selection of stenographers for appointment as sub-inspectors, and the inspector general of police in persuance of the powers vested in him under the.....t.v.r. tatachari, j.(1) these two writ petitions have been heard together and they may be disposed of by a common judgment. the petitioner in civil writ petition no. 147 of 1967 is kundan lal vij, an officiating sub-inspector, delhi police. the petitioner in civil writ petition no. 148 of 1967 is harish chander who is also an officiating sub-inspector of police, delhi. the writ petitions have been filed by the petitioners praying for the issuance of an appropriate writ, order or direction (1) quashing an order dated 31st january, 1967, by which the names of the petitioners were removed from the promotion list 'f' (2) quashing the supersession of the petitioners by janki nath, respondent 10 in the writ petitions and (3) directing respondents i to 3 to give the petitioners their seniority.....
Judgment:

T.V.R. Tatachari, J.

(1) These two writ petitions have been heard together and they may be disposed of by a common judgment. The petitioner in Civil Writ Petition No. 147 of 1967 is Kundan Lal Vij, an officiating Sub-Inspector, Delhi Police. The petitioner in Civil Writ Petition No. 148 of 1967 is Harish Chander who is also an officiating Sub-Inspector of Police, Delhi. The writ petitions have been filed by the petitioners praying for the issuance of an appropriate Writ, order or direction (1) quashing an order dated 31st January, 1967, by which the names of the petitioners were removed from the promotion list 'F' (2) quashing the supersession of the petitioners by Janki Nath, respondent 10 in the writ petitions and (3) directing respondents I to 3 to give the petitioners their seniority in terms of their entitled confirmation and promotion.'

(2) Respondents 1 to 3 in the Writ petitions are-(1) The Delhi Administration through the Lieutenant Governor, Delhi (2) the Inspector General of Police, Delhi, and (3) the Deputy Inspector General 'of Police, Delhi. Respondents 4 to 10 in the writ petitions are Hari Kishan Marwah, Om Parkash, Sant Ram, Jagat Ram, Harbans Lal, Harbhagwan Singh and Janki Nath and they were imp leaded as respondents as their interests are likely to be affected in case the prayers in the writ petitions are granted. In opposition to the writ petitions, a counter-affidavit of Shri Vinod Kumar Seth Under Secretary (Home) Delhi Administration, has been filed on behalf of respondent 1, and a counter-affidavit of Shri L. S. Bisht, Inspector General of Police, Delhi has been filed on behalf of respondent 2. Respondent 4 also filed a counter-affidavit of his own. The petitioners filed rejoinders to the said counter-affidavits filed on behalf of respondents 1 and 2.

(3) The facts which led to the filing of the writ petitions may now be stated. Kundan Lal Vij joined the Delhi Police as a Junior Clerk on 16th December, 1948. He was declared quasi-permanent in the post of junior clerk with effect from 1st July, 1952. He was absorbed in the rank of Head Constable with effect from 26th August, 1952, and was confirmed as such with effect from 16th September, 1953. He was appointed as Stenographer with effect from 10th July, 1954 and was confirmed as such with effect from 10th July, 1957.

(4) Harish Chander joined the Delhi Police as a Head Constable (Steno-Typist) on 30th April, 1949, and was confirmed with effect from 8th May, 1952. He was appointed as a Stenographer with effect from 21st May 1953, and was confirmed as such with effect from 1st June, 1956.

Thus, petitioners, Kundan Lal and Harish Chander, were confirmed as Stenographers with effect from 10th July, 1957 and 1st June, 1956 respectively.

(5) Chapter Xiii of the Punjab Police Rules contains provisions regarding promotions. Rule 13.1(3) provides that for the purposes of regulating promotion amongst enrolled police officers six promotion lists-

A, C, D, E and F should be maintained. Lists A, B, C and D have to be maintained in each district as prescribed in Rules 13.6, 13.7, 13.8 and 13.9 and they regulate promotion to the selection grade of constables and to the ranks of head constables and assistant sub inspector. List F has to be maintained in the office of Deputy Inspector-General as prescribed in sub-rule 13.10(1) and it regulates promotion to the rank of sub-inspector. List F has to be maintained in the office of the Inspector-General as prescribed in sub-rule 13.15(1) and it regulates promotion to the rank of inspector. Sub-rule 13.1(3) further provides as follows :

'ENTRYin 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 We are concerned in the present case with lists E and F. The relevant rules regarding the said lists are Rules 13.10, 13.15 and 13.16. Rule 13.10(1) provides inter alia, that-

'Alist of all assistant sub-inspectors who have been approved by the Deputy Inspector-General as fit for trial in independent charge of a police station, or for specialist posts on the establishment of sub-inspectors, shall be maintained in card index form by each Deputy Inspector-General.'

(6) Rule 13.10(2) provides that:

'NOassistant sub-inspector shall be confirmed in a substantive vacancy in the rank of sub-inspector unless he has been tested for at least a year as an officiating sub-inspector in independent charge of a police station in a district other than that in which his home is situated.'

(7) Rule 13.15(1)-provides, inter alia, that-

'RECOMMENDATIONSon behalf of Sergeants and sub-inspectors considered fit for promotion to the rank of Inspector shall be submitted with their annual confidential reports on the 15th April each year to Deputy Inspector-General by Superintendents of Police in form 13.15(1).............. The Deputy Inspector-General shall decide, after seeing the officers recommended, and in consideration of their records, and his own knowledge of them whether to endorse the recommendations of Superintendents of Police and forward them to the Inspector-General ............'

(8) Rule 13.15(2) provides, inter alia, that-

'SUCHof the officers recommended as the Inspector-General may consider suitable shall be admitted to promotion list [Form 13.15(2)] which will. however, not be published.'

(9) Rule 13.15(3) provides, inter alia, that-

'........ . ........... . . ... .On receipt of these recommendations, the Inspector-General will review the Provincial List, and pass orders regarding the retention or exclusion of names, at the same time communicating his decision to the Deputy Inspector-General and the Assistant Inspector-General, Government Railway Police.'

(10) Rule 13.16(1) provides, inter alia, that-

'SUBSTANTIVEvacancies in the rank of Inspector, save those which are specially designated for the appointment of probationers, shall be filled by promotion of officers from List selected according to the principles laid down in rule 13.1.'

(11) Rule 13.16(3) provides, inter alia, that-

'NOofficer whose name is not on F list shall be appointed to 'officiate as Inspector without the special sanction of the Inspector-General.'

(12) Thus, list E is a list of all Assistant Sub-Inspectors who are fit for promotion to the posts of Sub-Inspectors or for specialist posts on the establishment of Sub-Inspectors and List F is a list of Sergeants and sub inspectors who are fit for promotion to the rank of Inspector.

(13) According to the petitioners, there was a practice in existence according to which stenographers/ministerial clerks used to be promoted as Sub-Inspectors in the Delhi and Punjab Police. They set out in their writ petitions or by way of examples six instances in which Stenographers were promoted as Sub-Inspectors. The said instances were those of Sarvshri Hem Behari Lal, Ganga Prashad, Ganpat Rai, Hira Lal. Hari Sarup and Siri Ram Bajaj. They also referred to a D.O.. Letter No. 9/103/56-RPS dated 22nd December, 1956 (Annexure A) which was sent by the Government of India, Ministry of Home Affairs, to the Delhi Administration. In that letter, it was stated, inter alia. that normally Stenographers were not eligible for promotion to ministerial posts, but that 'special provision may however, be made to permit Stenographers with long experience being considered for promotion to supervisory ministerial posts, if there are absolutely no promotion chances for Stenographers as such.' In answer thereto, Shri Vinod Kumar Seth stated in his counter-affidavit that open selections were held for the posts of Stenographers and persons both in the Police Force and outsiders were allowed to offer themselves as candidates for the said posts, and that on the petitioners being selected for the posts of Stenographers, they automatically ceased to be members of the Police Force. According to him, appointment of Stenographers in the Delhi Police is governed by the same rules as are applicable to other civilian Stenographers in the Delhi Administration, and Stenographers in the Police Department are not members of the Delhi Police Force and are not governed by the Punjab Police Rules as in force in Delhi. He also averred that there is no provision in the Punjab Police Rules for promotion of Stenographers or Clerks as Sub-Inspectors. He denied that there was any practice or procedure in respect of the promotion of Stenographers and clerks to the post of Sub-Inspectors, and that they were entitled to claim any such promotion. As regards the instances mentioned by the petitioners, he admitted the same but explained that under the Punjab Police Rules recruitment to the various posts can be made from the public and there is no bar to 'a ministerial Govt. servant or a Stenographer being selected for being appointed as a Sub-Inspector, and that, however, such appointment attracts the applicability of the Punjab Police Rules only after the appointment has been made or when a person is selected for appointment, but there is no provision in the Punjab Police Rules for promotion 'of Stenographers or civilian clerks to a post carrying police rank. It follows from the above averments that recruitment to the various posts in the Police Department can be made from Stenographers 'or civilian clerks, but the Punjab Police Rules will apply to a person only after he has been selected or appointed to a post carrying police rank like the post of a Sub-Inspector. As regards the D.O. letter (Annexure A) sent by the Government of India. he explained that it was only a suggestion to the effect that provision may be made to permit Stenographers being considered for promotion to supervisory ministerial posts, that in 1958 a decision was made in the Police Department that some venue for getting higher posts should be made available to clerks and Stenographers working in the Police Department, that as an experimental measure five Stenographers were brought on promotion list 'E' (Clerical ) and subsequently promoted to officiate as Sub-Inspectors (Clerical), and that the said action was taken in anticipation of Government sanction although neither the Punjab Police Rules nor any other stutute authorised such creation of promotion list 'E' (Clerical) for civilian Stenographers working in the Police Department.

(14) The petitioners also stated to the same effect in their writ petitions that no promotion lists 'D' 'E', and F' referred to in the Punjab Police Rules 13.9 (list 'D'), 13.10 (list 'E') and 13.15 (list 'F') were maintained for the clerical staff of the Delhi Police and that in 1958 certain Stenographers applied to the Deputy Inspector-General of Police, Delhi. for permission to take the 'E' list test for promotion to the rank of Sub-Inspector. They stated that four Stenographers, Ramji Dass, Hari Kishan, Harish Chander (petitioner) and Kundan Lal Vii (petitioner) were granted the permission that out of the said four Stenographers Hari Kishan, Harish Chander (petitioner) and Kundan Lal Vi) (petitioner), after taking the test, had their names admitted to list 'D' along with the names of three officiating Sub-Inspectors and ten confirmed Assistant Sub-Inspectors (Clerical) with effect from 3rd February 1958, their Inter-se seniority being determined from the date of confirmation either as Assistant Sub-Inspector or as Stenographer. The relevant gazette notifications have been filed as Annexures 'B', and 'C' dated 3rd February, 1958, and 26th April, 1958, respectively. In the notification Annexure C, it was stated that 'on having qualified in the Departmental Test. the name of Shri Kundan Lal Vij, Stenographer is brought on list 'E' (Executive Clerk) with effect from 3-2-1958.' The fifth person whose name was also included in list 'E' was Paras Ram Khurana. He was mentioned in the counter-affidavit of Shri Vinod Kumar Seth, while the petitioners did not mention his name in their writ petitions, Hari Kishan was promoted to officiate as Sub-Inspector from 3rd February, 1958, Harish Chander (petitioner) was promoted to officiate as a Sub-Inspector from 1st May, 1958, and Kundan Lal Vij (petitioner) was promoted to officiate as Sub-Inspector from 1st May, 1958/28th August, 1958 (as he remained a Stenographer from 9th July, 1958 to 27th August, 1958 for want of vacancy of a post of Sub-Inspector).

(15) The petitioners filed annexure 'D', 'E' and 'F' to show that a definite policy was adopted for allowing Stenographers to take the necessary test for inclusion in the 'E' list. Annexure 'D' is a circular letter, dated 11th February, 1958, issued by the Deputy Inspector General of Police, and it was stated therein that confirmed Stenos can take 'E' list test for English Office. Annexure 'E' is a circular letter, dated 19th August, 1958, to which was annexed a list of officiating Assistant Sub-Inspectors (Executive Clerks) and Stenos who were shown as being eligible to take 'E' list (Clerical) lest. Annexure 'F' also is a Circular letter, dated 21st August, 1959, issued by the Assistant Inspector General of Police announcing that a Departmental test for inclusion of names to promotion list 'E' (English office) would be held on 23rd October, 1959, and that officiating Sub-Inspectors whose names were not on 'E' list, confirmed Assistant Sub-Inspectors and confirmed Stenographers could take the test. list of officers who were eligible to take the test was annexed to the said circular letter and Nos. 24 to 28 therein were stenographers. It is thus clear that a definite decision of policy was taken to permit Stenographer and Clerks to appear for the necessary test for inclusion of their names in promotion list 'E', and the petitioners and other Stenographers were permitted to take the said test, and their names were included in 'E' list. According to the counter-affidavit of Shri Vinod Kumar Seth, the said decision was taken only as an experimental measure. But, it has to be noted that it was not stated in any of the, circular letters issued at that time that it was an experimental measure as now stated in the counter-affidavit.

(16) Hari Kishan (Respondent No. 4) who had been admitted to the 'E' list along with the petitioners had been promoted to officiate as Sub-Inspector on 3rd February 1958, and was confirmed as such with effect from 1st March 1961, as per gazette notification (Annexure G) dated 1st March, 1961. It appears from the counter affidavit of Shri Vinod Kumar Seth that Hari Kishan was subsequently transferred on his own request to the Executive Branch after he had undergone necessary training for a new post at the Police Training School, Phillaur. Ramji Dass was reverted as Stenographer with effect from 13th June. 1962. Paras Ram Khurana was, after about four months, selected for appointment as Stenographer in the Ministry of Health, and he joined that post The petitioners, however. continued to officiate as Sub-Inspectors (Clerical) till the passing of the impugned order (Annexure N) on 31st January, 1967.

PERMANENTvacancy of Sub-Inspector became available on 15th November, 1962. According to the petitioners, they were to have been confirmed by that time in view of their good service record and their having officiated continuously for more than four years while the Punjab Police Rule'? required only officiation for atleast a year before confirmation as Sub-Inspectors. The petitioners alleged in their writ petitions that instead of confirming them, respondents 5 to 9 who were junior to them were confirmed on 15-11-1962, 15-11-1963, 27-5-1966 and 12-9-1966, respectively. The petitioners made representations regarding their confirmation, the last of them being Annexure H, dated 22nd June, 1964. The Assistant Inspector-General of Police replied (Annexure 1) to them by letters, dated 7th July, 1964, staling that the case regarding 'confirmation of Stenographers in the rank of Sub-Inspector was still under consideration and would be decided on merit, and that they should not submit applications again and again regarding their confirmation.

(17) As regards the confirmation of the petitioners, Shri Vinod Kumar Seth stated in his counter-affidavit that it could not be said that the petitioners were bound to have been confirmed against the vacancy which became available on 15-11-1962, that no one could claim his confirmation as of right, that the Punjab Police Rules did not envisage any maximum period for which a person could officiate in a particular post or rank, that respondents 5 to 9 were enrolled as Police Officers of the rank of Assistant Sub-Inspector before the admission of their names on list 'E', and accordingly they had rightly been brought on list E and were governed by the Punjab Police Rules, that the admission of the said persons to list E, their subsequent officiating promotion as Sub-Inspectors and their final confirmation in the rank of Sub-Inspector was perfectly in accordance with the Rules as they belonged to the rank and file of the Delhi Police and were entitled, when their turn came, for confirmation and that their cases could not be equated with that of the petitioners as the petitioners were neither rightly brought on list E and thereafter promoted as officiating Sub-Inspectors nor could they claim confirmation as of right, their names having been brought on list E and their subsequent promotion as officiating Sub-Inspectors being subject to Government sanction of the experimental measure in pursuance of which they had been brought on list E and subsequently promoted as officiating Sub-Inspectors. He further averred that the plea of the petitioners that respondents 5 to 9 were junior to them was misconceived as the said respondents formed a class different from that of the petitioners. He again repeated that the Police Department, through the Delhi Administration, had sought approval of the Government of India for giving ex post facto sanction to the decision by which the petitioners were brought on list E provisionally and then promoted as officiating Sub-Inspectors, but the Government of India had since declined to accord the said sanction.

(18) On 20th January, 1965, the Inspector-General of Police announced that a test for confirmed Sub-Inspectors would be held in February, 1965 for admission of their names to promotion list (Clerical). The petitioners requested the Inspector-General of Police for permission to take the list F (Clerical) test Along with the confirmed Sub-Inspectors, as otherwise they would be superseded by a number of Sub-Inspectors who were junior to them but, who had already been confirmed. In response to the said request, the Inspector General of Police, by his letters (Annexure J and K), dated H 5th February, 1965, permitted the petitioners to take the F list test provisionally on the condition that their results would be withheld till they are confirmed as Sub-Inspectors. Kundan Lal Vij (petitioner) stood first in the test and Harish Chander (petitioner) stood second. According to the petitioners, in view of their having stood first and second in the test, the Inspector-General of Police permitted the publication of the result, and the admission of their names to the promotion list F with effect from 6th April, 1965. A copy of the said promotion list F published in the gazette, dated 4th October, 1965, has been filed as Annexure'L. In that list, it was stated against the names of the petitioners that the said admission of their names to list F was provisional and subject to the Government sanction for their absorption as Sub-Inspectors. Shri Vinod Kumar stated in his counter-affidavit that the permission granted to the petitioners to take the test for admission to list F clearly stipulated that the said promotion was provisional subject to the cases of the petitioners being decided by the Government of India for confirmation as Sub-Inspectors, that as the sanction of the Government of India had not been received the Inspector General of Police permitted the publication of the result and the admission of the names of the petitioners on list F provisionally subject to the Government's sanction for the absorption of the petitioners as Sub-Inspectors, and that the Government of India had since declined to accord the said sanction.

(19) Shortly after the announcement of the result of list F test. sub inspector, Lila Ram, who was at Seriall No. 1 of the promotion list F was promoted as Inspector with effect from 27th April, 1965. Explaining this promotion, Shri Vinod Kumar Seth stated in his counter affidavit that Lila Ram was not a Stenographer before being brought 1 on list E, but was a confirmed Assistant Sub-Inspector, that after admission to list E he was promoted 'and confirmed in due course as Sub-Inspector in accordance with the provisions of the Punjab Police Rules, that he was brought on promotion list F in accordance with Rule 13.15 and subsequently promoted to officiate as Inspector in accordance with Rule 13.16, that the case of Lila Ram was entirely different from that of the petitioners whose initial admission to list E, subsequent promotion as officiating Sub-inspector, permission to sit in the test for list F, and the admission to list F were all provisional subject to sanction by the Government of India.

(20) On 1st December, 1966, Shri Bishan Sarup, Inspector (Clerical) was promoted as Deputy Superintendent of Police, according to the petitioners they were entitled because of their seniority, good record . and their as being on promotion list F, to be promoted to the said vacancy of Inspector (Clerical) created by the promotion of Bishan Sarup. But, one Janki Nath. respondent 10, was promoted to the said vacant post vide order (Annexure M). According to the petitioners, Janki Nath had never passed the list F test. and his name had never appeared on the list F. Thereupon, Harish Chander (pelitioner) made a representation, dated 9th January. 1967, a copy of which was endorsed to the Inspector-General or Police. Then, on 31st January, 1967, the impugned order (Annexure N) was passed by the Inspector General of Police removing the names of the petitioners from list F. It was stated in the said order that the names were so removed as desired by the Delhi Administration'.

(21) Explaining the appointment of Janki Nath, and the removal of the names of the petitioners from list F, Shri Vinod Kumar Seth stated in his counter-affidavit that the admission of the names of the petitioners to list F was provisional and unless their cases were first decided with regard to their absorption as Sub-Inspectors they could not claim any right for further officiating promotion Inspector As regards the promotion of Janki Nath, 'he stated that the said promotion was only on ad hoc basis and he was liable to be reverted at any time, that Janki Nath was promoted even though his name was not on list F as no other officer on list F was eligible or available to fill in the vacancy created by the promotion of Bishan Sarup, inasmuch as the petitioners were still unconfirmed Sub-Inspectors, who had been provisionally brought on list F and their cases had till then not been decided by the Government of India, and that the promotion of Janki Nath was quite in accordance with the provisions in Rule 13.16(3) of the Punjab Police Rules. As regards the removal of the names of the petitioners from list F, Shri Vinod Kumar Seth stated that the said order was not passed in consequence of the representation made by Harish Chander (petitioner) on 9th January, 1967 but that the names were removed in compliance with the directions of the Delhi Administration. He further stated 'that the decision of the Delhi Administration was taken on 5th January, 1967 on a reconsideration of the whole case and a representation, dated 17th May, 1965, made by one Sewak Singh, a confirmed Sub-Inspector, against his non-inclusion in list F, and on account of the irregularity of the permission granted to the petitioners to take the list F test.

(22) Aggrieved by the said order, the petitioners have filed the present writ petitions praying-(1) for the quashing of the order (Annexure N) removing their names from the promotion list F, (2) for quashing the supersession of the petitioners by Janki Nath, and (3) for the issuance of a direction to the respondents to give the petitioners their seniority in terms of their 'entitled confirmation and promotion'.

(23) Shri Anthony, learned counsel for the petitioners contended firstly that the various annexures A to F referred to by the petitioners in their writ petitions show that the petitioners, who were confirmed Stenographers were allowed to appear for the list E test by the Inspector General of Police in pursuance of a general policy decision taken regarding the grant of permission to confirmed Stenographers to appear for the list E test that the Inspector General of police had the power to take such decision and issue instructions permitting Stenographers like the petitioners to appear for the said test by virtue of the provisions in sections 4 and 11 of the Indian Police Act, and that it was no where stated in any of the aforesaid Annexures that it was an experimental or ex-gratia measure or that the permission was subject to sanction by the Government of India as is now stated in the counter-affidavit filed on behalf of respondents 1 and 2. As stated by Shri Vinod Kumar 'Seth in his counter-affidavit, it is true that there is no provision in the Punjab Police Rules as in force 'in Delhi for promotion of Stenographers or clerks as sub inspectors. But he himself had stated in the counter-affidavit that der the said Rules recruitment to the various posts can be made from the public and there is no bar to a Ministerial Government servant or a Stenographer being selected for being appointed as a Sub-Inspector. He also admitted that, as pointed out in the writ petitions, Hem Behari Lal, Ganga Prashad, Ganpat Rai, Hira Lal, Hari Sarup and Siri Ram Bajaj, who were all Stenographers, were absorbed in the Police Department as Sub-Inspectors between 1940 and 1956.

(24) The D.O. letter (Annexure A), dated 22nd December, 1956, sent by the Government of India, Ministry of Home Affairs, shows that the policy of the Government of India also was to see that a provision is made to permit Stenographers to be considered for promotion to supervisory ministerial posts. The post of Sub-Inspector (Clerical) is ministerial in character and supervisory in nature as is clear from Rule 11.1 read with Appendix 11.27(1) of the Punjab Police Rules and Fundamental Rule 9(17). Shri Vinod Kumar Seth himself had stated in his counter-affidavit that in 1958 a decision was made in the Police Department that some venue for getting higher posts should be made available to clerks and Stenographers working in the Police Department and the petitioners and three others were permitted to appear for the list E test and their names were brought on list E, and that they were subsequently promoted to officiate as Sub-Inspectors (Clerical). He, however, added that the said action was taken as an experimental measure and in anticipation of getting the sanction of the Government of India. But, as pointed out by Shri Anthony, no where was it stated in any of the Annexures A to F either that it was an experimental measure or that it was subject to sanction by the Government of India. Even if it was an experimental measure as stated in the counter-affidavit it is immaterial as the fact remains that the petitioners were permitted to appear for the test, and when they passed in the test their names were brought on list E and were subsequently promoted to officiate as Sub-Inspectors. It was stated in the counter-affidavit that the same was contrary to the Punjab Police Rules. It is difficult to accept the said statement as correct as the rules do not prohibit the selection of Stenographers for appointment as Sub-Inspectors (Clerical) in the Police Department. Rule 13.10 merely states that the list E of all Assistant Sub-Inspectors, who have been approved by the Deputy Inspector General of Police as fit for trial in independent charge of a Police Station or for specialist posts on the establishment of Sub-Inspectors, shall be maintained. It does not prohibit the selection of persons such as Stenographers who are not Assistant Sub-Inspectors, for appointment to the posts of sub inspectors ( Clerical) and in fact, as already stated above, this was admitted in the counter-affidavit. As the selection of Stenographers for appointments as Sub-Inspectors (Clerical) is not prohibited by and. thereforee, not contrary to the rules, such selection can be authorised or directed by administrative instructions. That rules can be supplemented by administrative instructions or directions not inconsistent with the Rules has been established by the decisions of the Supreme Court in Sant Ram Sharma v. State of Rajasthan and others : (1968)IILLJ830SC . Further Section 4 of the Police Act, 1861, vests the administration of police throughout a general policedistrict in the Inspector-General of Police and in such Deputy Inspector General and Assistant Inspectors General as to the Statement Government shall deem fit. Section 12 of the said Act empowers the Inspector General of Police to frame from time to time subject to the approval of the State Government such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the police-force. He has, thereforee the necessary power and authority to issue administrative instructions, not inconsistant with the rules. on matters which have not been provided for or covered by the rules. thereforee, the permission granted to the petitioners and other Stenographers to appear for the list E test, the inclusion of their names in the list E and their subsequent promotion to officiate as Sub-inspectors- was quite legal and valid, although the Punjab Police Rules did not provide for the same. It may be pointed out here that according to respondents 1 and 2, the question regarding the absorption of the Stenographers working in the Police Department as Sub-Inspectors (Clerical) had been under the consideration of the Government of India and the Government of India finally decided not to sanction the said absorption. A letter No. 10/8/65-P.1 dated 23rd September, 1967. from the Government of India, Ministry of Home Affairs to the Under Secretary( Home) Delhi Administration, which was referred to in the counter-affidavit of Shri L. S. Bisht, Inspector General of Police, Delhi, has been filed by the Central Government Counsel on 26th November, 1968, and has been placed on the record of these writ petitions. It was stated in that letter that the question of regularising the promotion of Stenographers of Delhi Police as Sub-Inspector has been carefully considered in consultation with the Ministry of Law, that the statutory rules made under the Police Act, 1861, as extended to Delhi, cannot be relaxed in the absence of express power conferred by the Act or rules, that any appointment of the Police-Force made in contravention of the rules would be unauthorised and liable to be challenged by a writ of quo warranto and the Police Officer appointed in contravention of the rule's would not be competent to exercise the police power, and that the cases oF Stenographers appointed as sub inspectors of Delhi Police may, thereforee, be reviewed in the light of what has been stated in the letter. However, the Government of India have since taken a decision that Stenographers in Delhi Police may be enrolled in the Police Act as Assistant Sub-Inspectors/Sub-Inspectors that the existing scale of pay i.e. Rs. 130-5-160-8-200-256-280-10- 290-10^300 may be retained, and that the rank of Sub-Inspector may be conferred on the Stenographers, as and when their pay reaches the stage of Rs. 168.00 i.e. the minimum of Sub-Inspector's pay and Stenographers drawing less than Rs. 168.00 would be in the rank of Assistant Sub-Inspector. A letter, (Annexure W-3) dated 24th October, 1969, mentioning the above decision was sept by the Under Secretary to the Government of India, Ministry of Home Affairs to theChief Secretary, Delhi Administration. It has to be noted that the said decision was taken without making any rule, but, as an administrative direction. As already held above, such an administrativedirection either by the Central Government or by the Inspector General of Police is in no manner inconsistent with or contrary to the Police Rules,, and is quite valid in law. It has, thereforee, to be held that the permission granted to the petitioners to take the list E test, the inclusion of their names in the list E, and their subsequent promotion to officiate as Sub-Inspectors were all legal and valid.

(25) The second contention of Shri Anthony was that the petitioners, Kundan Lal Vij and Harish Chander, who were promoted to officiate as Sub-Inspectors from 28th August, 1958 and 1st May. 1958 respectively, had been officiating continuously since the said dates, that the PunJab Police Rules require only officiation for at least a year before confirmation as Sub-Inspector and that they should, have thereforee, been deemed to have been confirmed by 15th November, 1962 when a permanent vacancy of Sub-Inspector became available. The learned counsel relied upon the provision in Rule 12.8(1) of the Punjab Police Rules and the decision of the Supreme Court in State of Punjab v. Dharam Singh 1968, S.L.R. (S.C.) 247. Rule 12.8(1) .runs as follows:

'INSPECtorS,sergeants, sub-inspectors and assistant sub inspectors who are directly appointed will be considered to be on probation for three years and are liable to be discharged at any time during or on the expiry of the period of their probation if they fail to pass the prescribed examinations including the riding: test, or are guilty of grave misconduct or are deemed, for sufficient reason, to be unsuitable for service in the police. A probationary inspector shall be discharged by the Inspector-General and all other Upper Subordinates by Range Deputy Inspector-General and Assistant Inspector General, Provincial Additional Police (designated as Commandant, Provincial Additional Police and Assistant Inspector-General of Police, Traffic). No appeal lies against an order of discharge.'

(26) In Dharam Singh case, it was held by the Supreme Court that where the service rules fixed a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a Probationer by implication and that in such a case it is permissible to draw an inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. In the present case, Rule 12.8(1) merely states that Sub-Inspectors who are directly appointed will be considered to be on probation for three years. The rule does not state that the period of three years was the maximum period and does not contain any prohibition against an extension of the period of three years. No inference of an implied confirmation on the expiry of the period of three years can, thereforee, be drawn relying upon the decision in Dharam Singh's case. The contention of the learned counsel cannot, thereforee, be accepted.

(27) The third contention was that the petitioners should have been given a reasonable opportunity to show cause against the removal of their names from list F before passing the impugned order (AnnexureN) and that the said removal of the names without giving an opportunity was vocative of principles of natural justice and fair play. The learned counsel relied upon the decisions of the Supreme Court in State of Orissa v. Dr. Miss Binapani Del and other, : (1967)IILLJ266SC , A..K. Praipak and others v. Union of India and other : [1970]1SCR457 . And S. K. Potty, Superintendent, Mysore Government Secretariat, Vidhana Soudha, Bangalore v. The Union of India and another, 1969 S.L.R. 226. As already stated, the Inspector-General of Police announced on 20th January, 1965, that a test of- confirmed Sub-Inspectors would be held in February 1965, for admission of their names to promotion list F (Clerical). The petitioners requested the Inspector General of Police for permission to take the said test Along with the confirmed sub inspectors and they were permitted to appear for the test provisionally on the condition that their results would be withheld till they are confirmed as Sub-Inspectors. The petitioners took the test. The Inspector-General of Police, notwithstanding the condition mentioned in the order granting permission to the petitioners to take the test, allowed the publication of the result. Petitioner, Kundan Lal Vij, stood first in the test. and petitioner, Harish Chander, stood second. The Inspector General of Police also permitted their names to be brought on list F. Their names were accordingly brought on list F(Annexure L) with effect from 6th April, 1965. In that list, it was stated against their names that the said admission of their names to list F was provisional and subject to the Government's sanction for their absorption as Sub-Inspectors. On 1st December. 1966, there was a vacancy in the post of Inspector (Clerical) was promoted as Deputy Superintendent of Police. According to the petitioners, they were entitled because of their seniority good record and their being on the promotion list F, to be promoted to the said vacancy. But, Janki Nath, respondent 10, was promoted to the said post. According to the petitioners, Janki Nath had never passed the list F test, and his name had never appeared on the list F. Harish Chander petitioner. thereforee, made a representation, dated 9th January, 1967. a copy of which was endorsed to the Inspector-General of Police. Then. on 31st January 1967, the impugned order (Annexure N) was passed by the Inspector General of Police removing the names of the petitioner from the list F. and it was stated in the said order, that the names were so removed 'as desired by the Delhi Administration.'

(28) As regards the removal of the names of the petitioners from list F, Shri Vinod Kumar Seth stated in his counter-affidavit that the Delhi Administration, on a consideration of the whole case and a representation dated 17th May. !965, made by one Sewak Singh. a confirmed Sub-Inspector, against his non-inclusion in list F, as well as the irregularity of the permission granted to the petitioners to take the list F test decided on 5th January, 1967 required that the names of the petitioners should be removed from the list F. and that the names were removed accordingly by the impugned order (Annexure N) dated 31st January. 1967 as desired by the Delhi Administration. The said avermeuts do not disclose the reasons for which the Delhi Administration had decided to remove the names of the petitioners from list F. No document containing the decision of the Delhi Administration has been filed, and it is thereforee, not known for what reasons the Delhi Administration decided to remove the names of the petitioners. It was no doubt slated in the counter-affidavit that the Delhi Administration took into consideration the irregularity of the permission granted to the petitioners. But. the counter-affidavit does not state on what grounds the Delhi Administration had considered the permission to be irregular. Shri Saharya learned counsel for respondents 1 and 2, produced a copy of letter, dated 25th January, 1967, written by Shri Vinod Kumar Seth to the Inspector-General of Police. Delhi. The said copy has been placed on the record of these writ petitions. The letter states, inter-alia that the matter was discussed with the Inspector-General of Police in a meeting held in the room of the latter on 5th January. 1967. and a decision was taken that the names of Kundan Lal Vij and Harish Chander will be deleted from list F, since they had not yet been confirmed as Sub-Inspectors. Thus, the said letter gives a reason different from the reason given in the counter affidavit and does not state that the names of the petitioners were removed from list F by reason of the alleged irregularity of the per- mission granted to the petitioners. As pointed out above, the permission granted to the petitioners was not contrary to the provisions in the Police Rules and was granted validly by the Inspector General of Police to the petitioners. Rule 13.15 shows that the Sub-Inspectors considered fit for promotion to the rank of Inspector are admitted to promotion list F. It is thus clear that the entry of the name of a Sub-Inspector in list F means that he is considered fit for promotion to the rank of Inspector. Rule 13.16(1) requires that the vacancies in the rank of Inspector should be filled by promotion of officers from list F. Thus, the admission of the name of a Sub-Inspector to list F may or may not amount to conferment of a right to promotion to the rank of Inspector, but it at least gives him a right to be considered for promotion to the rank of Inspector. The removal of the name from the list, thereforee affects the said right. In other words, removal of a name from list F has civil consequences. As held by the Supreme Court in the cases of Binapani Dei and A. K. Kraipak (Supra), an administrative order which has civil consequences has to be passed in accordance with principles of natural justice and fair play.' In S. K. Potty's case (supra), a Division Bench of the High Court of Mysore, relying on the decision of the Supreme Court in Union of India and another v. P. K. Roy and others, : (1970)ILLJ633SC , held that when the rank assigned by the State Government in the. provisional inter-State seniority list is altered by the Central Government by giving the concerned person a lower rank. the said person is entitled to make representation against such alteration and if that opportunity is not afforded, the said alteration would transgress the rules of natural justice as explained in Roy's case. thereforee, before a name in list F is removed, an opportunity has to be given to the concerned officer to show cause against such removal. In the present case. admittedly the petitioners were not given such opportunity before the impugned order removing their names from list F was passed. The said order is thereforee, liable to be quashed as having been passed in violation of principles of natural justice and fair play. Shri Saharya, learned counsel for respondents 1 and 2, referred to the decision in Ramaswamy v. Inspector-General of Police. : (1970)ILLJ649SC . In that case, it was held that a reading of the Rules 401 and 486 of the Hyderabad District Police Manual shows that the mere fact that a Sub Inspector's name is put in the eligibility list does not give him an indefeasible right to promotion.

(29) The said decision has no application to the facts of the present case as already pointed above, Rules 13.15 and 13.16(1) of the Punjab Police shows that the admission of the name of a Sub-Inspector to list F may not amount to conferment of a right to promotion to the rank of Inspector, but that it at least gives him a right to be considered for promotion to the rank of Inspector. The proposition laid down in Ramaswamy's case does not thereforee, apply in the present case. Shri Saharya also referred to the decision in State of Bombay v, F. A. Abraham, : (1963)IILLJ422SC , Stale of Punjab v. Jagdip Singh. : (1966)ILLJ749SC , and an unreported decision of the Supreme Court in Divisional Personnel Officer Southern Railway, Mysore v. S. Raghavendrachar, Civil Appeal No. 975, of 1965, dated 16th December, 1965(8). In F. A. Abraham's case (Supra) it was held that when a person officiating in a post is reverted for unsatisfactory work, that reversion does not amount to a reducation in rank, as he has not right to hold the officiating post for all times. That is not the proposition we are concerned with in the present case. In Jagdip Singh's case (Supra) it was held that 'Where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which he was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status.' This proposition also is not the one with which we are concerned in the present case. In S. Raghavendrachar's case (Supra) also it was held that reversion of a Government servant from an officiating post to his substantive post, while his junior is officiating in the higher post, does not, by itself, constitute a reducation in rank within the meaning of Article 311 of the Constitution. We are not concerned with that proposition in the present case.

(30) Shri Anthony also argued that the removal of a name from a promotion list amounts to an award of punishment by reason of the provision in Rule 16-33 of the Punjab Police Rules, and that a reasonable opportunity should, thereforee, be given before the removal of the name from the promotion list. There is no force in this. argument. Rule 16.33 states as follows :

'REMOVALof a name from a promotion list may follow from the award of punishment for a specific offence, or be ordered on general grounds. In neither case shall a formal charge be framed nor evidence recorded, but an order shall be recorded in writing and given effect to through an entry in the Order Book. The original order of the authority ordering removal shall be read out to the officer concerned, but a copy thereof shall not be given to him and no appeal shall lie against it.'

(31) It is clear that the rule does not state that every removal of a name from a promotion list amounts to an award of punishment. It only states that the removal of the name may follow from the award of punishment for a specific offence. There is, thus, no substance in the argument of the learned counsel.

(32) The last contention on behalf of the petitioners was that the removal of the names of the petitioners from list F was mala fide. The only reason given by the petitioners for their allegation that the impugned order was mala fide is that Janki Nath (respondent 10) was promoted to the post of Inspector (Clerical) in the vacancy caused by the promotion of Bishan Sarup as Deputy Superintendent of Police, although Janki Nath had never passed the list F test and his name had never appeared on the list F. As already stated, Shri Vinod Kumar Seth explained in his counter-affidavit that the said promotion was only on ad hoc basis and he was liable to be reverted at any time, that Janki Nath was promoted even though his name was not on list F as no other officer on list F was eligible or available to fill in the vacancy created by the promotion of Bishan Sarup and the petitioners were still unconfirmed Sub-Inspectors who had been provisionally brought on list F and their cases had till then not been decided by the Government of India and that the promotion of Janki Nath was quite in accordance with the provision in Rule 13.16(3) of the Punjab Police Rules. There is no reason for not accepting the said Explanationn. In any case, the said action in promoting Janki Nath to officiate as Inspector cannot be regarded as a circumstance from which an inference of mala fadi can be drawn. The contention that the impugned order is mala fide has. thereforee, to be rejected as being without any basis- in the view taken by me regarding the third contention, viz. that the impugned order (Annexure N) dated 31st January. 1967, removing the names of the petitioners from the list F is liable to be quashed as having been passed in violation of principles of natural justice and fair play, the writ petitions are allowed and the aforesaid impugned order (Annexure N), dated 31st January, 1967 is quashed.

(33) During the pendency of the writ petitions, the petitioners filed Civil Miscellaneous Petitions Nos. 465-J of 1967 and 466-J of 1967, and M. M. Isrnail, J. passed orders in each of the said petitions on October 11, 1967 as under :

'ANYpromotion that may be made out of the persons who have already been included in the F' list will he subject to the result of the writ petition in the event of the petitioner's success.'

(34) Subsequently, the petitioners were served with notices Nos. 18338/CB and 18341/CB dated 13rh September, 1968, requiring them to showcause why their names should not be removed from the list E and they be reverted to their substantive rank of Stenographer. The petitioner Kundan Lal Vij, thereupon filed C.M.P. No. 1885-J of 1968 praying that the respondents may be directed to maintain the status quo and that the operation of the show-cause notice issued to him may be stayed. On 27th September. 1968, S. K. Kapur. J. passed an order in the said application as under:

'27-9-1968: Mr. Frank Anthony for petitioners Mr. Prakash Narain for respondents Mr. Prakash Narain states that he has no objection if the name of the petitioner is allowed to continue on List E provided the petitioner is willing to work as a Stenographer. Mr. Prakash Narain also gives an undertaking to this Court that in case the petitioner succeeds in the writ petition he will be. soon after the decision thereof, resorted to the position as obtains today and his working as Stenographer will not in any way prejudice his rights and privileges. Mr. Anthony, the learned counsel for the petitioner, has no objection to this course.

(35) In these circumstances, I direct that the name of the petitioner should not be removed from List E but the petitioner would work as a Stenographer and. draw emoluments as such. But in case the petitioner succeeds his working as Stenographer will not prejudice his right to draw emoluments on the basis of petitioner's position today. This stay order is being made in view of the undertaking of Mr. Prakash Narain and agreement of Mr. Anthony as mentioned above. There will be no order as to costs.

(36) The writ petition will be listed for hearing within two days.

SDS. K. KAPUR

September 27, 1963

Judge'

the petitioners were thereafter reverted to the rank of Stenographers on 3rd October, 1968 (Annexure W-l). Subsequently, the petitioner, Kundan Lal Vij, was re-promoted (Annexure W-2) as officiating Sub-Inspector (Clerical English Office) with effect from 29th August, 1969 against a temporary vacancy. It was stated in the said order that the promotion was purely temporary and depends on the decision of this Court in the writ petitions nos. 147 and 148 of 1967 of Kundan Lal and Harish Chander and that the promotion would not in any way prejudice the stand taken by the Delhi Administration in the said writs.

(37) Respondents .1 and 2 are, thereforee, directed to fix the seniority of the petitioners, in accordance with the atoresaid orders of M. M.Ismail, J. and S, K. Kapur. J and the observations and findings in this judgment.

(38) In the circumstances of the case. the parties are directed to bear their own costs in these writ petitions.


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