SUSHIL KUMAR vs STATE OF HARYANA
SUSHIL KUMAR vs STATE OF HARYANA - Supreme Court Case 2022
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 401 OF 2022
ARISING OUT OF SLP(CIVIL) NO. 30370 OF 2017
SUSHIL KUMAR …. APPELLANT(S)
VERSUS
THE STATE OF HARYANA & ORS. .... RESPONDENT(S)
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
Leave granted.
2. This Civil Appeal arises out of the final judgment and order dated
29.07.2015 of the High Court of Punjab and Haryana at Chandigarh passed in
LPA No. 1910 of 2011.
3. The Appellant was appointed as a Constable in the year 1995. It is his case
that he was positioned as a Head Constable under the extent ORP Policy on
21.08.2001. Due to his acts of bravery his name was recommended by the
Superintendent of Police (hereinafter ‘the SP’) for promotion under the 10%
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quota of outstanding performance for inclusion in the B-I List for promotion to
the post of Head Constable in the year 21.01.2004. However, the Appellant’s
name was dropped down by the Inspector General of Police (hereinafter the ‘IG’),
when only 7 out of the 9 names were forwarded to the Central Departmental
Promotion Committee (hereinafter the ‘CDPC’). Three years thereafter, i.e., in
2007 his name was again forwarded by the SP and this time it was passed by the
IG, by virtue of which he was granted promotion and was made the Officiating
Head Constable from 26.10.2008. It is his grievance that he should have been
promoted in the year 2004 itself and that the delay in appointing him in 2008 is
illegal and arbitrary. He filed a writ petition in 2011 seeking retrospective
promotion with effect from 21.01.2004. The Single Judge dismissed the petition
on the ground that selection is not a matter of right. Writ appeal was also
dismissed by the Division Bench by the order impugned herein.
4. The learned counsel for the Appellant, Shri Surender Kumar Gupta has
argued that the IG has no power to interfere with the recommendation of the SP.
He further alleges that when the SP has forwarded the decision of the
Departmental Promotion Committee (hereinafter ‘DPC’), the IG does not act as
the appellate authority and cannot substitute his decision to that of the DPC. It is
also contended that the IG has no power to adjudge the comparative merit in list
B-I prepared by the DPC. He further submits that the IG has not given any reasons
nor was the Appellant given any opportunity of hearing. He alleges that he is far
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more meritorious than the ones who have been recommended by the SP and
approved by the IG in 2004. It is his case that the decision is arbitrary because the
very same credentials enabled him to be selected and recommended in 2007. He
has therefore prayed for retrospective promotion from the year 2004.
5. The learned Additional Advocate General for the Respondent-State, Shri
Raj Singh Rana, has submitted that the names recommended by the SP to the
CDPC are only provisional and subject to ratification by the IG, and mere
forwarding of the name of the Appellant by the SP will not create any right of
promotion in his favour. He has submitted that the word “through” in Rule 13.7(9)
of the Punjab Police Rules, 1934 calls for application of mind by the IG and not
mere forwarding of the recommendations as sent by the concerned unit head. The
Respondents have alleged that the seven constables appointed were more
qualified than the Appellant.
The Rules:
6. The present appeal pertains to the promotion of Constables to the post of
Head Constables in the State of Haryana. The matters relating to the promotion
of Constables to the rank of Head Constables are governed under the Punjab
police Rules, 1934 as applicable in the State of Haryana.
6.1 The scheme of appointment and promotion is governed by the provisions
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which are as follows:
12.10 Appointment of Head Constable: Head constables
shall be appointed by promotion from selection grade
constables in accordance with rules 13.7 and 13.8.
13.1 Promotion from one rank to another.
(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.........
6.2 Chapter 13 of the Rules lay down the scheme for promotion. Rule 13.7 is
concerned with the selection of candidates for admission to the Lower School
Course at the Police Training College out of which postings of Head Constables
are made. The Head Constables are selected out of a list of Selection Grade
Candidates which is made out of three sources being: (a) direct recruitment-(55%
quota), (b) Seniority-cum-merit -(35% quota) (c) Outstanding performance-(10%
quota). Rule 13.7 prescribing the method of selection, leading to the appointment
of Head Constable, to the extent that it is relevant for the 10% quota is extracted
herein below:
“13.7 Selection of candidates for admission to courses at the
Police Training College: 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
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Lower School Course in a year shall be allotted on the basis
of existing vacancies and the vacancies likely to 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…………
(2)(iii) All constables irrespective of their educations
qualifications shall be eligible to be brought on list B-1, on
the basis of consistent outstanding performance in
job/obtaining Gold or Silver medal in All India Police
Games/Duty Meets/National or 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 a
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……….
(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
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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……
(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 from 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.”
7. The mandate of the above rule for appointment to the post of Head
Constable under the aforementioned 10% quota for outstanding performance can
be restated as under -
7.1 There shall be a Departmental Promotion Committee (DPC) in
every district/unit comprising of the SP/ Commandant and two
Deputy Superintendent of Police, headed by the SP.
7.2 The DPC shall prepare a list called List B-I. The list will be
prepared from among the eligible candidates to be appointed the
requirement of which is specified under Rule 13.7. All
constables irrespective of their educational qualifications shall
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be eligible to be brought on list B-I on the basis of consistent
outstanding performance in job 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.
7.3 The List prepared by the DPC, headed by the SP will be
forwarded to the Inspector General of Police/ Deputy Inspector
General of Police (hereinafter IG/DIG) who is the Cadre
Controlling Officer of the SP/Commandant.
(i) The IG/DIG will undertake and examine its correctness.
(ii) The IG/DIG will be competent to seek clarifications from
the DPC if he considers it to be necessary.
(iii) He is also competent to refer the list back to the SP for
correction of any error or omission.
(iv) The IG/DIG shall thereafter accord his approval.
(v) It is specifically provided that the List shall not be final
until the same is approved by the IG/DIG.
7.4 IG/DIG shall send its recommendations on behalf of each unit
to the CDPC. The CDPC is appointed by the Director General
of Police, (hereinafter the DGP).
7.5 Finally, the 10% quota is allocated out of a State Level
Comparative Merit List prepared on the basis of the list sent
from each unit by the IG.
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Findings8. In view of the clear procedure laid down under the Rule 13.7, the
contentions of the Appellant must fail for the following reasons8.1 In the first place, the assumption that the recommendation of DPC headed
by the SP is final and that the IG has no power to review or substitute the decision
is misconceived. The Rule itself clarifies the position that the recommendations
of the SP are not final until the same is approved by the IG. Further, the powers
of the IG are elucidated clearly in Rule 13.7(14). It is stated that the ‘approval’is
by the Cadre Controlling Authority of the SP. It is the IG, who shall accord
‘approval’ only upon scrutiny. This means if the IG is not satisfied, he shall not
accord approval. The scope of the power vested in the IG is also indicated in the
Rule which provides that he can seek clarifications from the DPC and also refer
the List back to the SP for corrections/omissions if he thinks it is necessary.
Having considered the Rule in its entirety, we are of the opinion that the
recommendation of the DPC is not final. It is also evident that the
recommendation of the DPC does not give any indefinite right to be appointed as
Head Constable.
8.2 The 10% quota for constables having outstanding performance will be
filled on the basis of State level comparative merits. As indicated above, there is
a three-stage scrutiny before a constable is selected as a Head Constable. The
third stage requires the candidate to be sufficiently high in the State Level
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Comparative Merit of the candidates to be selected under the 10% quota.
Therefore, it can never be contended that mere recommendation of the SP at the
initial stage is sufficient to claim a right for promotion. The further contention of
the Appellant is that the power of the IG is “not discretionary but mandatory” is
also incorrect as Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise
the power of scrutiny and grant approval. This power would also extend to not
granting an approval if the IG is not satisfied. Therefore, the power is not be rested
solely on the basis of the word “through” in Rule 13.7(9).
8.3 As far as the contention of Appellant that the subsequent recommendation
was also on the very same outstanding performance is concerned, it is to be noted
that the merits and accolades of the candidates recommended for promotion vary
from year to year on a comparative merit scale. The competitive environment
differs from year to year. The scrutiny is dynamic and cannot be adjudged on the
basis of a previous year’s performance. The Appellant’s accolades may not have
made a fit case to be recommended in the year 2004 but the same could make a
fit case to be considered in a subsequent year. It is the domain of the IG as also
the CDPC to analyse, consider and clear the names of the candidates found fit to
be promoted in the List B-I for that year and it must best be left to the discretion
of the said authorities.
8.4 The Single Judge as well as the Division Bench for good reasons refrained
from going into the individual comparative merit. In judicial review proceedings,
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the Courts are concerned with the decision-making process and not the decision
itself.
9. We are of the opinion that there is no illegality or arbitrariness in the
process of selection and for the reasons stated above we are not inclined to
interfere with the judgment of the High Court. Appeal, is therefore, dismissed.
Parties to bear their own costs.
……………………………….J.
(K.M. JOSEPH)
……………………………….J.
(PAMIDIGHANTAM SRI NARASIMHA)
NEW DELHI;
JANUARY 19, 2022
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