B.C. Misra, J.
(1) This order will dispose of three Letters Patent Appeals Nos. 116, 127 and 136 of 1971 arising out of a common judgment of a learned Single Judge dated 25th March, 1971 by which the learned Judge has partly allowed the writ petitions.
(2) The common question raised in these appeals is the true construction and effect of rule 13.4, 13.9 and 13.18 of the Punjab Police Rules 1934 (amended from time to time and applied to Delhi (hereinafter referred to as the rules). The rules have been framed under sections 7 and 12 of the Indian Police Act 5 of 1861 and have a statutory force. The material facts for the determination of the question of law are that all three appellants, namely, Sat Pal, Radhey Shyam and Balkar Singh, who were recruited as Constables, were promoted as Head Constables and confirmed as such. Later on, they were placed on what is known as List D framed under rule 13.1 read with rule 13.9. Head Constables placed on this list are eligible for promotion to the next rank of Assistant Sub-Inspector of Police and they are also eligible for being sent up for training to the upper police training school at Phillaur after completion of which they may be placed on List E for higher promotion as Sub-Inspectors. The police authorities having confirmed the appellants as Head Constables and having placed them on List D, appointed them as officiating Assistant Sub-Inspectors on various dates (appearing hereinafter) but they kept them- in this officiating capacity for a number of years and did not either confirm them or place them on probation on the way to automatic confirmation under rule 13.18 and also denied them the facility of being sent up for training to the upper school. Eventually the appellants were reverted from the officiating posts to their substantive posts as Head Constables but subsequently orders of reversion were, during the pendency of the writ petition, cancelled presumably following the rule of law laid down in Dalip Singh v. Lt. Governor Delhi Administration and another, 1970 Delhi Law Times 346.
(3) Aggrieved by the orders of reversion, the appellants filed separate writ petitions in this Court claiming that the orders of reversion be quashed and they be sent up for training in the upper school and be afforded their due seniority, promotion and confirmation.
(4) The petitions were contested on behalf of the respondent and the main ground of contest was that the appellants had been reverted from the officiating posts as they were found unsuitable in the higher posts and they were not reverted by way of punishment; it was also contended that the appellants had been pro- moted in officiating capacity and they had never been promoted on probation, hence rule 13.18 did not apply to them and they were not entitled to the reliefs claimed. As mentioned above the orders of reversion have been cancelled during the pendency of the writ petition.
(5) So far as Sat Pal is concerned, we are informed that not only has his reversion been cancelled, but he has also been confirmed as Assistant Sub-Inspector on 19th August, 1971 and he has been sent up for training in the upper school. As a result his writ petition and the appeal in this Court have be- come infructuous except with regard to seniority which he claims from an earlier date.
(6) The detailed facts with regard to the other appellants are that Radhey Shyam was appointed as Constable on 21st December, 1950 and after being appointed officiating Head Constable on 1st April, 1957 was confirmed as such on 1st July, 1959. On 1st October, 1963, he was placed on List permanent and was promoted as officiating Assistant Sub-Inspector on 29th October, 1963 against what we have been informed was a temporary post. On 12th January, 1970, he was reverted which reversion has been cancelled on 18th July, 1971 during the pendency of the writ petition and there is no adverse entry against him. He has not been promoted or sent up for training. So far as Balkar Singh is concerned, he was recruited as a Constable in 1948 or 1949 and was after being appointed Head Constable on 1st February, 1951, confirmed as such on 15th November, 1962. On 12th October, 1964, he was promoted as officiating Assistant Sub-Inspector and was reverted on 1st April, 1966. Then he was sent up for training in the Inter- mediate Course at the Police Training College, Phillaur and was placed on D List permanent. On return from his course, he was appointed as officiating Assistant Sub-Inspector on 7th April, 1966 against what was, we are informed a permanent post. He continued to occupy this post for some years and was reverted on 12th January, 1970 which order was revoked on 6th August, 1970. There is an adverse entry against him for the period from 1st September, 1969 to 21st February, 1970 and the reporting officer has, while giving good reports about his impartiality, loyalty, reliability, moral character, reputation, fair deal- ings and attitude towards subordinates and relations with fellow officers, has observed that 'his honesty could not be vouched for.' Balkar Singh in his writ petition as well as appeal before us has pressed for cancellation of the said adverse entry and has prayed that he should be sent up for training and be promoted and confirmed in the higher post.
(7) The learned Single Judge decided the writ petitions of the appellants by a common judgment and he came to the conclusion that the promotion of a Head Constable to the rank of Assistant Sub-Inspector would be either officiating or substantive in the absence of specific orders placing him on probation and that on the record it was not clear whether or not the posts in which the appellants had been promoted were regular vacancies in permanent posts. The learned Single Judge also held that it was incorrect on the part of the respondents to urge that only confirmed officers were sent up for training and he found that the officiating personnel was also sent up for training. The learned Judge, however, repelled the allegation of the appellants with regard to mala fides and held that the failure to confirm them did not make the orders of confirmation of other junior officers discriminatory or mala fide and the learned Judge finally directed that the appellants had a right to be sent up for training in the upper school course in order of seniority, firstly out of the confirmed officers, then the ones placed on probation and lastly the officiating Assistant Sub-Inspector. Dissatisfied with this decision, the appellants have filed these appeals and have contended that on construction of the relevant rules, the appellants should be treated as having been placed on probation on the date of their appointment as officiating Assistant Sub-Inspectors and on the expiry of two years thereafter they be held entitled to automatic confirmation without a fresh order and that a mandamus be issued to the respondents to confirm them and send them up for higher training.
(8) It may be added that the appellants urged that during the course of arguments before the learned Single Judge, the respendents had through their counsel admitted that the appellants had been appointed in an officiating capacity to permanent posts in regular vacancies. We expressly called upon the learned counsel for the respondents to answer this allegation. We were informed that Sat Pal and Balkar Singh were promoted in an officiating capacity against permanent vacancies while Radhey Shyam had been appointed to temporary vacancy. On their behalf additional affidavits have been filed which are couched in ambiguous language. We are, thereforee, unable to clearly determine whether the appellants had been appointed as Assistant Sub-Inspectors against permanent regular vacancies and if so under what circumstances.
(9) The relevant statutory rules may be quoted below for ready reference:- '13.1. (1) Promotion from one rank to another and from one grade to another in the same ranks, shall be made by selection tempered by seniority. Efficiecy and honesty shall be the main factors governing selection. Specific qualifications, whether in the nature of training courses passed or practical experience, shall be carefully considered in each case. When the qualifications of the two officers are otherwise equal, the senior shall be promoted. This rule does not affect increments 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. thereforee, 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.
(10) List A, B, C, and D shall be mainted 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 Inspectors 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 of the Inspector-General as prescribed in sub-rule 13.15(1) and will regulate promotion to , the rank of inspector:
(11) 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.
(12) 13.4. (1) Officiating promotions to the rank of inspector shall be made by Deputy Inspectors-General of ranges and the Assistant Inspector-General, Government Railway Police. If the flow of promotion is unevenly distributed amongst ranges, the Inspectors-General of Police shall make suitable transfer of sub-inspectors on the promotion list from one range to another. (2) Officiating promotions to the rank of sub-inspector and assistant sub-inspector shall be made by Superintendents of Police and Assistant Superintendent, Government Railway Police. If the flow of promotion is unevenly distributed among districts, the Deputy Inspector General shall make suitable transfers of assistant sub-inspectors and head constables on the promotion lists from one district to another. (3) All promotions concerning upper subordinates made under this rule shall be published in the Police Gazette, and notifications by Superintendents shall be sent in through the Deputy Inspectors-General, who shall have the power to revise such orders on recording reasons in each case. If any Superintendent has not enough men on lists D and E in his district to fill temporary appointments in either rank, which he is required to make, he shall apply to the Deputy Inspector-General for a man from another district.
(13) 13.9. (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 trial 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 subrule 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. 13.18. All Police Officers promoted in rank shall be on probation for two years, provided that the appointing authority may, by a special order in each case, permit periods of officiating service to count towards the period of probation. On the conclusion of the probationary period a report shall be rendered to the authority empowered to confirm the promotion who shall either confirm the officer or revert him. In no case shall the period of probation be extended beyond two years and the confirming authority must arrive at a definite decision within a reasonable time soon after the expiry of that period whether the officer should be confirmed or reverted. While on probation officers may be reverted without departmental proceedings. Such reversion shall not be considered reduction for the purpose of rule 16.4.
(14) This rule shall not apply to constables and Sub-Inspectors promoted to the selection grade, whose case is governed by rules 13.5 and 13.14.
(15) In our opinion, the scheme of the rules seems to be that promotion from one rank to another is to be made by selection tempared by seniority with due regard to efficiency and honesty. The names of the officers are entered in List D for the purpose of selecting officers from amongst the list for promotion to the next rank. A procedure is also prescribed in rule 13.12 for removal of an officer from the said list. Rule 13.4 prescribes that officiating promotions to the rank of Assistant Sub-Inspector shall be made by Superintendent of Police and if enough men be not found on the List D in that particular district to fill up temporary appointments, the Deputy Inspector General has to draw men from another district. Substantive promotions are also made out of this list in accordance with principles prescribed in rule 13.1. With regard to officiating promotions, rule 13.9(2) directs that officiating promotion shall be made out of this list as far as possible in rotation so as to give each man a trial in the duties of the higher rank. In our opinion an analysis of the rules shows that officiating promotion of Assistant Sub-Inspectors from List D is intended to be made, as far as possible, in rotation or turns so as to give each man a trial in the duties of higher rank. We are of the view that officiating appointments envisaged in the rule are appointments against temporary posts or against temporary vacancies in permanent posts, both of which must, in the nature of things, be of a short duration. But in case there is a permanent post and a permanent or regular vacancy and there is exigency of public service requiring local arrangement it is difficult to hold that the rules permit promotion of qualified men to be made in officiating capacity for more than 2 years being the period mentioned in rule 13.18 during which their fitness and confirmation must finally be determined. It is obvious that the promotion of a fit senior officer cannot be superseded and bye-passed by a junior, by keeping the senior in the higher post in an officiating capacity indefinitely. Any other interpretation would destroy the object of the rules and would militate particularly against rule 13.18. On a construction of rule 13.9(2). if it be left to the authorities concerned to discriminate against equal persons and appoint some in officiating capacity and keep them in this capacity for several years while appoint others on probation on way to automatic confirmation after two years, the power will be unguided and unfettered and would be discriminatory and unconstitutional.
(16) Rule 13.18 is an important rule in this context and strong reliance has been placed on it by the appellants. The rule in substance lays down that all police officers promoted to the higher rank shall be on probation for two years, on the completion of which the officer must either be reverted or confirmed, but the period of probation cannot be extended. This period of probation can be curtailed by the appointing authority by giving the promoted officer credit of the period he spent on service in officiating capacity. Rule 13.18 does not require an express order for probation. In fact, all promotions are subject to the rule and condition of being placed on probation under rule 13.18 and during this period, the authorities have to try the officer and on its expiry, either confirm or revert him. The provision in rule 13.18 empowering the appointing authority to permit periods of officiating service to be counted towards the period of probation, is not intended to confer a right on the appointing authority to pick and choose from amongst the police officers found fit for promotion and give benefit of automatic confirmation under rule 13.18 to some and to deny at to others. It is unfortunate that the appellants have been kept in officiating capacity for a number of years without consideration of their case for substantive promotion and without express determination of their fitness or otherwise for promotion in substantive capacity. The rule requires the higher officers to keep a strict watch on the conduct and efficiency of the officers and pass definite orders with regard to their fitness within a reasonable time, but it is a legal right of the public servant equally placed to be considered for promotion. .If there is nothing against the officers, senior qualified officers must be promoted and confirmed and if there be anything against them which militates against their fitness, there must be a definite decision according to law holding them unfit for promotion or confirmation every time their juniors are considered for promotion.
(17) Until 1968, there was no adverse entry against any of the appellants. Their confidential reports have not been placed before us and in reply to the application of the appellants, privilege from production has been claimed. We asked the learned counsel for the respondents it the reports about the appellants from the date of their promotion in an officiating capacity till 1968 or 1969 were adverse or unfavorable, but he could not point out anything to show that the appellants had anything but good reports about them during that period. In 1969, one adverse entry was given against Sat Pal. which led to his reversion, but since his reversion has been revoked and he has been confirmed, we do not express any opinion on the validity of the said entry. In respect of Radhey Shyam, there has never been any adverse entry.
(18) So far as Balkar is concerned, for the period from 1st September, 1969 to 21st February, 1970, his reporting officer observed that his honesty could not be vouched for. This can scarcely constitute an adverse report. We are informed that the Delhi Administration in their order dated 4th January, 1965 (No. F. 20/80/Home. E) in dealing with the case of-one Sardul Singh observed that the reporting officers were not required to vouch for the integrity and honesty of their subordinates and all that they were required to do was to certify the integrity of the officer or to withhold it in case they had cogent reasons for doing so. In our opinion, this view of the Delhi Administration is correct. Rule 13.17 requires definite reports about the subordinates, including recommendations required by clauses (a), (b) or (c) therein. We hold that the reporting officer must definitely state whether the subordinate concerned is honest or not honest or his honesty is doubtful. He can also state whether or not the subordinate is maintaining reputation for honesty, but to say that the honesty cannot be vouched for is as pointed out by the Adniinistration. not a correct way to assess the work and character of the subordinate. We do not want to be understood as laving down any letters on the right and power of the superior oflicers to write out character-roils of the subordinates working under them frankly and feailessly. but they must write them clearly and not cloud them in unnecessary or ambiguous verbiage. The aforesaid entry relating to Balkar Singh can. thereforee, not be called an adverse entry. At all events, it is of no material consequence in the present case as the reversion following upon the same entry has been revoked.
(19) As a resuit, we hold that Radhey Shyam and Baikar Singh appellants are also entitled to be sent up to the upper training school and they be sent up in the present session if seats be available or in the next available session. We further direct the respondents to consider each of the appellants for promotion to permanent posts of Assistant Sub-Inspectors of Police in a substantive capacity, on every occasion and as prior to the date a Head Constable junior to the appellant concerned was substantively promoted or placed on probation on way to automatic promotion under rule 13.18 during the period since the appellants were respectively promoted as officiating Assistant Sub-Inspectors against permanent posts, and if the appellants be found fit, they would be substantively promoted and confirmed and given their due seniority, irrespective of the fact that they had initially been promoted as Assistant Sub-Inspectors to permanent posts only in officiating capacity.
(20) Accordingly, we allow the appeals of Radhey Shyam and Baikar Singh (L.P. As. 127 and 136 of 1971) and direct the respondents to act according to the directions contained herein. So far as Sat Pal is concerned, no immediate relief is necessary as he has been promoted and confirmed and sent up for training. The question of his seniority may be determined by the authorities on his return from training in accordance with law and the observations made herein. Before we part with the case, we may observe in agreement with the learned single Judge that we do not find any material to substantiate the contention of the appellants about mala fides of the respondents which plea we expressly reject. The parties will bear their respective costs of the appeals.