Full Judgment Text
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CASE NO.:
Appeal (civil) 2273 of 2004
PETITIONER:
S.I. Paras Kumar & Ors.
RESPONDENT:
S.I. Ram Charan & Ors.
DATE OF JUDGMENT: 12/04/2004
BENCH:
S. RAJENDRA BABU , RUMA PAL & B. P. SINGH.
JUDGMENT:
J U D G M E N T
(ARISING OUT OF S.L.P. (C) NO. 13389/1998)
[WITH CIVIL APPEALS NOS. \005\005\005.\005\005\005\005\005\005\005\005/2004
(ARISING OUT OF SLP (C) NOS. 17591/1998,
19246/1998, 15944/1998, 2083/1999, 18492/2001,
14283/1998, 16514/1998, 16102/1998, 2082/1999,
20840/1998, 15943/1998, 7817-18/1999, 2080/1999,
17648/1999, 15542/1998, 14694-95/1998, 14313/1998,
19245/1998, 20839/1998, 18493-94/2001, 18497/2001,
15945-46/1998 AND 16829/1998]
RAJENDRA BABU, J. :
Leave granted.
The legal validity of ’out of turn promotion’ given to
some Police Officials based upon their courage displayed
during anti-terrorist operations or outstanding
performance in Sports’ is the foremost matter for
judgment in this batch of cases.
Promotions based on courage displayed in Anti
Terrorist Operations:
1. SLP (C) No 17591 OF 1998. [Arising from final
judgment in CWP No. 403/ 97 of the Punjab and Haryana
High Court]
Chander Pal & others v. Ram Charan & others.
All together 14 Petitioners are in this case. All of them
were appointed as Constables during the period 1976-’89.
They were promoted as Head Constables on the ground of
showing bravery in anti-terrorist front or on the ground of
outstanding performance in Sports. Show Cause notices
were issued to them and they were reverted to the
original rank. Their writ petitions were disposed of by the
High Court vide common order in 403/97. Challenging this
order the present SLP is filed.
2. SLP (C) No. 19246 of 1998. [Arising final judgment
in CWP No. 403 of 1997 of the Punjab and Haryana High
Court]
Narinder Singh & others v. Ram Charan
Appellants got out-of-turn promotion on the basis of
bravery shown in Anti-Terrorist Front. The original WP was
disposed of along with 403/97. Challenging this the
instant SLP.
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3. SLP(C) No. 15944 of 1998 - [Arising final judgment
in CWP No. 403 of 1997 of the Punjab and Haryana High
Court]
Sadhu Ram & Others v. Ram Charan & others
All together 16 Petitioners are in this case. All of them got
one rank \026 ’out of turn’ promotion based on their bravery
and exemplary courage during activities on Anti-Terrorist
front. Subsequently the Respondents herein filed writ
petition before the High Court challenging the out of turn
promotion given to these Petitioners. High Court allows
the Writ petition. Aggrieved by the impugned judgment,
the present SLP.
4. SLP (C) No. 2083 of 1999 \026[against final judgment
dated 19/5/98 ]
Rameshwar Singh v. State of Haryana
Petitioner was originally appointed as a constable and was
promoted as Head Constable. Later was promoted as ASI
on the basis of his bravery. Subsequently reversion order
was passed and he was reverted to the rank of Constable.
This reversion order was challenged. High Court disposed
of the writ vide common order in 403/97. Challenging this
the instant SLP was filed.
5. SLP (C) No. 18492 of 2001. [Against final order
dated 31/8/2002 passed by Hon’ble Division Bench of
Punjab and Haryana High Court in LPA No. 1957 of 2001].
Prem Das & others vs. Bachan Singh Randhwa &
others.
All the petitioners in this case were given out of turn
promotion on the basis of their meritorious service in Anti-
terrorist front as Inspectors on ORP basis. They were not
parties to Writ-Petition/Appeals. In accordance with the
impugned order passed by the Punjab and Haryana High
Court, Government is taking steps to revert the
appellants. To prevent the furtherance of such an action,
they approached the High Court. Both the petition and
subsequent LPA were dismissed. Aggrieved by the same,
the present SLP.
6. SLP (C) No. 14283 of 1998 \026 [arising from final
judgment dated 19/05/1998 in CWP No. 403/1997 of
Punjab and Haryana High Court].
SI Ramesh Chander & Others v. SI Ram Charan &
others.
Appellants 1 to 6 were given out of turn promotion on the
basis of their courageous act in Anti-Terrorist Front. After
the final judgment of the Punjab and Haryana High court
in CWP No. 403/1997 they were reverted to lower ranks
even without hearing. Present SLP challenges the said
reversion orders.
7. SLP (C) No. 16514 of 1998. [Arising from judgment
dated 19/05/98 in CWP No. 13023/1997].
Jahangir Singh v. State of Haryana
Appellant appointed as Constable. Later promoted as HC
and then as ASI, his promotion was based on the activities
in anti-terrorist front. Show Cause notice for reversion
was served. Later an order of reversion was passed.
Aggrieved by the decision he approached the High Court.
High Court did not allow his prayer. Hence the present
SLP.
8. SLP (C) No. 16102 of 1998. [Arising from final
judgment in CWP No. 12536 of 1997].
Zile Singh and others v. State of Haryana
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All the three petitioners were originally appointed as
Constables during the period 1971-81. Later they were
promoted as Head Constables and as ASIs. It was out of
turn promotion based on the ground of bravery, which
they have shown in anti-terrorist front. Later reversion
order was passed whereby they were reverted to the
substantive rank of Constables. They approached the High
Court. High Court disposed of the matter saying that if
they were outside the quota of 10%, then they might be
demoted below the rank of Head Constable. Aggrieved by
this the present SLP.
9. SLP (C) No. 2082 of 1999 \026 [arising from common
order in CWP 403/97].
Chander Bhan & others v. Ram Charan & others
Petitioners got out of turn promotion on the basis of their
performances in Sports or on the ground of bravery
displayed in Anti-terrorist operations. Later reverted after
issuing show cause notices. Their Writ to the High Court
was disposed of by common order in 403/97. Aggrieved
by this the present SLP.
Promotions based on performance in various
Sports and Games:
1. SLP (C) No. 20840 of 1998. [Arising final judgment
in CWP No. 403 of 1997 of the Punjab and Haryana High
Court]
Naresh Kumar & another v. Ram Charan & others.
Petitioner No. 1 is promoted as Sub-Inspector of Police on
the basis of displaying courage in anti-terrorist operations
and Petitioner No. 2 is promoted as Head Constable on the
basis of performance in Sports. Later a Show Cause notice
is issued which is followed by reversion order. Challenging
this the present SLP.
2. SLP (C) No. 15943 of 1998 - [Arising from final
judgment in CWP No. 403/1997 of Punjab and Haryana
High Court].
Ashok Kumar & others v. SI Ram Charan & others
18 Petitioners. All of them were originally appointed as
Constables during the period 1976-’89. Later all of them
were promoted to the post of Head Constable on the basis
of their performance in various Sports items.
Subsequently the Respondents herein filed writ petition
before the High Court challenging the out of turn
promotion given to these Petitioners. High Court allows
the Writ petition. Aggrieved by the impugned judgment,
the present SLP.
3. SLP (C) 7817-18 of 1999. [Arising from CWP 15548
& 15550 / 1997 of Punjab and Haryana HC].
Anoop Singh and another v. DGP of Haryana.
The appellants originally were appointed as Constables.
Later were promoted to Head-Constables and
subsequently as ASIs. Promotion was based on their
performance in Sports. Later they were reverted to the
original rank after serving show-cause notices. The case of
appellants was disposed of along with other cases on
19/5/98 vide the final judgment in CWP No. 403/1997
before the Punjab and Haryana High Court.
4. SLP(C) No 2080/99 of 1999 \026[arising from
judgment dated 19/5/98 by Punjab and Haryana High
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Court in CWP No. 12536 of 1997 which was disposed
along with 403/97].
Baljith Singh v. State of Haryana & others
Appellant got promotion to the rank of Head Constable on
the basis of his performance in Sports. Later he was
served with a show-cause notice and was subsequently
reverted to the rank of Constable. He challenges the
reversion order before the High Court. It was disposed by
common order in 403/97. Aggrieved by the same, the
present SLP.
5. SLP (C) No. 17648/99. [Arising from final order
dated 19/12/97 of Punjab and Haryana High Court in
review application No. 292/97 in CWP No. 8672/97].
Shri Harpal Singh v. State of Haryana.
Petitioner was originally appointed as Constable. On the
basis of his performance in Sports he was promoted as
Head Constable and later as ASI. Order of reversion was
served on him. He challenges the reversion order before
the High Court. His case along with other cases was
disposed of vide common order in 403/97. Review petition
was also dismissed. Hence SLP.
6. SLP (C) No. 15542 of 1998 \026 [arising from final
judgment dated 25/05/1998 in CWP No 13006/97 of
Punjab and Haryana High Court].
Shamser Singh v. State of Haryana:
Petitioner was appointed as a Constable in Haryana. Later
promoted as Head Constable. On the basis of his
distinguished contribution in the field of Sports, he was
promoted to the post of ASI. Later he was demoted as a
Head Constable. Challenges this decision before the High
Court. Dissatisfied by the High Court decision he filed the
instant SLP.
7. SLP (C) No 14694-95 of 1998 \026 [arising from
judgment dated 22/10/97 passed by Division Bench of
Punjab and Haryana High Court in CWP Nos. 12827 of
1997 and 12829 of 1997]
HC Krishan Kumar & Others v. State of Haryana.
Appellants were promoted as Head \026 Constables in the
Haryana on the basis of their distinguished achievements
in Sports / Games. They were issued with Show-Cause
notice of reversion. Reversion orders were passed.
Appellants filed CWP Nos. 12827 of 1997 and 12829 of
1997 before Punjab and Haryana High Court. High Court
quashed the reversion Order with the finding that the
Show Cause notice issued to the appellants does not
properly comply with the natural justice requirement. At
the same time High Court granted liberty to Respondents
therein to issue fresh show-cause notices and to revert
this Appellants. Aggrieved by this conclusion, the present
SLP.
8. SLP (C) No. 14313 of 1998 \026 [from judgment dated
19/05/1998 by Punjab and Haryana High Court in CWP
No. 12536 of 1997 \026 this was disposed along with CWP
No. 403/97].
Kuldeep Singh & others v. State of Haryana
Six Petitioners. They got ’out of turn promotion’ on the
basis of their distinguished achievements in the field of
sports. Were promoted to Head Constable rank. Show
Cause notices were issued and subsequently reverted to
the rank of Head constable. Petitioners writ before the
High Court was disposed with the common order in
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403/1997. Aggrieved by the same the instant SLP.
9. SLP (C) No. 19245 of 1998. \026[Arising from the
judgment dated 22/10/97 of P&H High Court in CWP No
13014/97]
Salinder Singh v. State of Haryana
Petitioner was originally appointed as Constable on the
basis of his performance in Sports he was promoted to the
next higher rank. Later he was served with Show Cause
notice for reversion. Reversion order was passed. He
challenges this decision in a Writ petition before the High
Court. Though High Court quashed the reversion for want
of natural justice requirement, permitted the State to
revisit the decision by issuing fresh show cause notice.
Challenging this the present SLP.
10. SLP (C) No. 20839 of 1998. [Arising from judgment
dated 22/10/97 of P&H High Court in CWP No. 12703 of
1997].
Sohan Singh v. State of Haryana
Petitioner was appointed as Constable. Later promoted as
Head Constable based on his performance in the field of
Sports. Subsequently he was served with a show cause
notice and was reverted later to the post of Constable.
His writ before the High Court was disposed of without
allowing his prayer. Challenging this the present SLP.
11. SLP (C) No. 15945-46 of 1998. [Arising from
final Judgment dated 23.09.97 of Punjab and Haryana
High Court in CWP No. 8620/97 and 8632 of 1997 which
was disposed along with CWP No. 10129/1997]
Ashok Kumar and Others v. State of Haryana &
others
There are 14 Petitioners. On the basis of their
distinguished contribution in the field of Sports, all of them
were promoted to the post of Head Constable. State later
served them with Show Cause notices alleging that the
promotions were not covered either by any rules or
instructions by DGP and were subsequently reversed. This
was challenged before the High Court. High Court allowed
the petition for the reason but left it open to the State to
initiate fresh proceedings as per law for reverting the
Petitioners herein. SLP filed.
Promotions to superior ranks:
1. SLP (C) No 18493-94/2001[Arising from final
judgment dated 31/8/2001 passed by Punjab and Haryana
HC in LPA No. 1957/2001].
Narinder Pal Singh & others v. Bachan Singh
Randhawa & others
Petitioners are SPs and DySPs. They got ’out of turn
promotion’ on ORP basis to the respective present ranks
on the basis of their extra ordinary bravery and
courageous acts on Anti-Terrorist front. The respondent
filed CWP No. 1386/96 before Punjab and Haryana High
Court. The learned Single Judge disposed of the writ
saying "creation and granting of ORP ranks are not in
conformity with the rules applicable to Punjab Police
Force." Appeal was preferred before Division Bench (Nos
1957/ 2001 and 1959/2001). The same was also
dismissed. Aggrieved by this the present SLP.
2. SLP(C) No. 18497 of 2001[Arising from final
judgment dated 31/8/2001 passed by Punjab and Haryana
HC in LPA No. 1957/2001].
Naginder Singh Rana& others v. Bachan Singh
Randhwa & others.
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All the Petitioners are appointed as DySPs on ORP basis.
Respondent in this case filed petition before the High
Court, challenging the promotion on ORP basis. Learned
single Judge and subsequently the Division Bench were of
the opinion that the ORP promotion is beyond the scope of
the relevant rules. Aggrieved by this the present SLP.
Background of the present proceeding is as follows:
The Police forces in Punjab, Haryana and in some
other states are covered by the Punjab Police Rules, 1934.
On 11/11/1982 the Director General of Police (DGP) of
Haryana issued a circular saying that Police Personnel
selected to National Team is entitled to special
consideration for promotion. On 09/09/1993 the DGP of
Punjab issued guidelines and criteria for giving one rank
promotion to Police Personnel who shows exemplary
courage and bravery on Anti-terrorist operations. It is also
mentioned in the said guideline that though there is no
provision in the Punjab Police Rules, 1934 (Police Rules)
for adhoc promotion, it is necessary that they may be
given one rank promotion on adhoc basis. Based on these
Circulars or guidelines some police officials were given ’out
of turn promotion’. But, it is alleged, such promotions
were also given to many other police officials even without
citing any reasons.
Several cases were filed before Punjab and Haryana
High Court challenging the very scheme of ’out of turn
promotion.’ Before the High Court, the Respondents
herein challenged the ’out of turn promotion’ given to the
Appellants herein and some others. They also prayed to
restrain the State from making any promotion that is
contrary to the criteria as provided under Rule 13(1) of
the Police Rules and to fill up the consequent vacancies
according to the procedure prescribed under Rule 13 of
the said Rules. Whereas, the Appellants stated that they
got ’out of turn promotion’ either on the basis of bravery
that they have shown in Anti-terrorist operation or on
their outstanding performance in Sports. By a common
order dated 19/5/98 the High Court disposed of all the
cases.
Relevant portion of the judgment dated 19/5/98 in
CWP No. 403/1997 is extracted hereunder:
" \005It will be in the fitness of things if a working
seniority is drawn by the Respondents of all the
Head Constables (Both list C-I and list C-II
combine) and then see if any Head Constables
juniors to the Writ Petitioners is still working as
Assistant Sub-Inspectors. If that is so any
person who is senior to such an ASI will not be
reverted till such an ASI is allowed to retain the
rank. Learned counsel for the Respondents
further state that the Petitioners whosoever is
within the 10% quota of the List C-II would be
deputed to the Intermediate School Course in
their turn.
The reversion orders in these writ petitions are
quashed to the extent that for the time being
none of the petitioners would be reverted below
the rank of Head Constable. However, if the
petitioners are found to be beyond 10% quota
meant under rule 13.8(2) of the Rules they
may be reverted even below the rank of Head
Constable. If after making a working seniority
of Head Constables (as observed above) it is
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found that any Head Constable who is junior to
the petitioners as a Head Constable is still
working as an ASI, though even on adhoc
basis, then qua such senior Head Constable the
reversion order from the post of ASI would be
deemed to have been quashed, meaning
thereby as if the reversion order was never
passed and such a person would be allowed to
continue as ASI even on officiating basis till his
junior is allowed to continue as ASI."
This decision is impugned before us.
It is the definite case of these appellants; that their
case was not discussed by the High Court while disposing
of the Writ; that their case stands different since they got
promotion on the basis of bravery and showing exemplary
courage on Anti-terrorist activities or on the basis of their
outstanding performance in Games/Sports; that such
promotion altogether stands on a different pedestal while
comparing with the regular promotions since they got it as
a recognition/ reward of their superior work; that in the
above dated Guideline issued by DGP dated 9/9/1993 it
has specifically directed that promotions made for showing
bravery and exemplary courage by Police Officials in
dealing with Terrorist activities will be in addition to Police
Rules; that the Writ ought not have been admitted by the
High Court due to the inordinate delay on the part of the
Respondents in approaching the High Court; that as per
the dictum in P.S Sadasivaswamy v. State of Tamilnadu
1975(2) SCR 356: 1975 (1) SCC 152, a person who is
aggrieved by the promotion of a junior would have to
challenge such promotion order within six months or
within a maximum of one year; that therefore it is
submitted that the decision of High Court is liable to be
reversed.
Some other Police Officials who got ’out of turn
promotion’ were ordered to be reverted to the original
rank. They filed the other Writ Petitions before the High
Court challenging the respective reversion orders.
Dissatisfied by the decision, the Petitioners in those cases
also preferred to appeal before this Court. The validity of
’out of turn promotion’ given to some officials to higher
ranks such as DSP/SP are to be decided in other
connected matters. All these cases were clubbed together
in the instant appeal.
Consequently, the question for consideration is -
Whether out of turn Promotion based upon ’courage on
anti-terrorist front or outstanding performance in Sports’
by the Director General of Police is permissible under
format of the Punjab Police Rules, 1934?
Punjab Police Rules were framed under section 2 of
the Indian Police Act, 1861 (Police Act). The voluminous
Punjab Police Rules cover all aspects of Police
administration. It has withstood the test of time and
underwent many amendments and modifications. Yet, the
basic structure of the Rules has not changed. It is
worthwhile to mention that the Punjab Police Rules is still
in force in six states in India and even in some provinces
in Pakistan. First of all it has to be clarified that the pay
and other conditions of service of police has to be decided
by the State Government under section 2 of the Police
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Act. (See generally Constitution Bench decision of this
Court in Ram Sharan v. DIG of Police, Ajmer AIR 1964 SC
1559 and also State of Rajasthan v. Ram Sharan AIR 1964
SC 1361). The right to be considered for promotion and
procedure to be followed for effecting promotion is a
condition of service. Promotions could be made only under
section 2 of the Police Act and no other procedure could
be adopted for effecting promotion. Since the Punjab
Police Rules are framed under section 2 of the Police Act,
the promotion could be made only by following the
procedure established under the relevant Rules. No
promotions could be made by any procedure outside the
scope of section 2 of the Police Act. Therefore the exercise
is to see whether the impugned promotions are made
following the Punjab Police Rules, which are framed under
section 2 of the Police Act.
Admittedly, even in the Memorandum issued by the
DGP wherein the impugned adhoc promotion was detailed,
it was clarified that the same were not based on the
provisions of the Punjab Police Rules. In the instant case
since the impugned promotions are not made under the
Punjab Police Rules and as a result, those promotions are
ultra vires to section 2 of the Police Act. Here, the powers
exercised by the DGP could only be traced from section 12
of the Police Act. Powers under section 12 extend to
administrative or organizational matters and the authority
for promotion is not vested with the DGP. As per the
scheme of the Police Act only the State Government is
empowered to determine promotional aspects. Therefore,
the impugned promotion made by the DGP cannot be
treated as regular promotion under Chapter 13 of the
Punjab Police Rules. The adhoc promotion carried out in
the instant case is only ornamental in nature.
Though the regular promotion could not be made by
the DGP, he can definitely forge some methods under
section 12 of the Police Act so as to encourage efficient
officers who did yeomen service in anti-terrorist front or
who earned laurels to the department. The impugned
adhoc promotion could be treated as one such method to
improve the efficiency of the police force by according
special status for meritorious officers. Similarly under the
Punjab Police Rules, Rule 13.2A, a subordinate (enrolled)
police officer could be given next higher rank as local
rank, in the interest of better functioning of the force.
Such granting of a next higher rank is only an exercise of
section 12 powers of the Police Act by the IG/DGP so as to
improve the efficiency of the force or for administrative
convenience. At the same time, it cannot be treated as
regular promotion under Chapter 13 of the Punjab Police
Rules.
Anyhow, in accordance with the earlier-mentioned
Circular/Guidelines issued by Director General of Police in
the States of Haryana and Punjab, some officials were
given out of turn promotion on adhoc basis. On December
6, 2000 while hearing these matters this Court made the
following Order:
"After having heard the counsel for the
parties for some time, it was suggested
that it would be appropriate for the
Government to explore the feasibility of
regularizing its action in having promoted
out of turn some of the petitioners before
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us for their exemplary action in showing
brave and courageous acts on anti
terrorist front."
Pursuant to this order, after due deliberations the
State proposed the "Own Rank and Pay" policy (ORP). The
relevant portion of the affidavit submitted on behalf of the
State before this Court wherein the ORP policy is
explained as hereunder:
"\005After examining the pros and cons of the
matter, it has now been decided that
Constables promoted within the prescribed
quota of 10% under P.P.R 13.8, may be
granted regular promotion as per decision
of the Hon’ble Punjab and Haryana High
Court in CWP No. 14844 of 1997 titled
Lachhman Singh v. State of Haryana.
Those Head Constables who have been
promoted on adhoc basis and are in excess
on 10% quota prescribed under rule 13.8
of PPR and ASIs, SIs and Inspectors who
have been granted adhoc/out of turn
promotion shall continue to wear badges of
their present rank against their substantive
rank and pay. This will be known as
promotion in their ’Own Rank and Pay’. A
person who has been promoted in his own
rank and pay for all intents and purposes
shall be treated as an official in his
substantive rank and will not consume or
exhaust any substantive post of higher
ranks in the regular channel of promotion\005
\005However, in order to avoid financial
hardship in respect of the officials falling in
category (a) above, the pay of such
officials will be fixed in the substantive
rank and the difference of the existing pay
as on 1-12-99 and their substantive pay
will be adjusted as their personal pay.
\005They would get their regular promotions
as HCs, ASIs, SIs and Inspectors as per
their turn and seniority subject to passing
promotional courses on their own\005"
This Court had occasion to look into the validity of
promotion to a Police Officer in accordance with Rule
13.8(2) in Rishal Singh v. State of Haryana and others, JT
1994 (2) SC 157. Here it was held that a promotion within
the 10% quota as provided in Rule 13.8(2) could only
treated as a regular one and not as an adhoc / temporary
promotion. It is also held that the language in which the
appointment order is couched is irrelevant and such a
promotion could never be an adhoc/temporary one. This
view was again followed in Jagbir Singh v. State of
Haryana and others, JT 1996 (4) SC 332. In the special
circumstances of this case, though the impugned
promotions are not promotions under the Rules, the State
came up with a proposal of the ORP scheme so as to deal
with the out of turn / adhoc promotes. Therefore, we are
of the opinion that those officials who are promoted within
the 10% limit of Rule 13.8(2) could be given regular
promotion and those who are beyond the 10% limit of
Rule 13.8(2) could be given ORP promotion which is
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designed to encourage and reward the good work of
meritorious officers without excessively burdening the
exchequer.
Before parting with the case it has to be clarified that
’Out of turn’ or adhoc promotion is to encourage the
subordinate police officers and shall be given only to
’enrolled police officers’ as under Rule 1.13 of the Punjab
Police Rules i.e., up to the rank of Inspectors. As per Rule
13.3(1) the power to make promotions among gazetted
officers and from non-gazetted to gazetted rank vests in
the local government with the concurrence of the
Governor. Therefore, the ’gazetted police officers’ i.e.,
Deputy Superintendents and above cannot come under
the ORP scheme which is essentially an exercise of powers
under Section 12 of the Police Act. In order to avoid
similar controversies in the future, it will be appropriate
for the State government to formulate appropriate
rules/policies so as to streamline the promotion for
appreciation.
The appeals shall stand disposed of accordingly.
SLP (C) No. 16829 of 1998. [Arising from
judgment dated 3.12.97 passed by Punjab and Haryana
High Court in CWP 8460/97]
State of Haryana v. Dayal Chand.
Respondent served in Indian Army between 1970
and 1975. On September 30, 1976 he was recruited as a
Constable (Dog Handler) in the dogs squad. After 18 years
he was promoted as Head Constable (Dog Handler).
Authorities served a reversion order to him saying that he
was promoted ’out of turn’. High Court noted that the
Department ignored no person senior to him while this
respondent was promoted, and quashed the reversion.
State has filed the present appeal by special leave.
There is no provision in the relevant Rules for
promotion of Constable (Dog Handler) to the post of Head
Constable. In view of the fact that the Respondent had
put in long service, the department felt he should be
promoted to the post of Head Constable even in the
absence of Rules enabling the same. In the normal course
when he could not have been promoted to a post which
did not exist, the proper course for the Government would
have been to create a post of Head Constable (Dog
Handler), if necessary, with retrospective effect from the
date he was promoted either by amending the relevant
Rules or in exercise of its executive power under Article
162 of the Constitution. Unless such exercise is taken he
could not be appointed to the post of Head Constable (Dog
Handler). Hence High Court ought to have upheld the
order of reversion.
Now that he has been in promoted cadre since the
year 1994 and the High Court has quashed the order of
reversion of the appellant, we do not think we should
disturb that state of affairs but direct the Government to
regularize the appointment made as indicated by us in the
course of this order.
The appeal is disposed of accordingly.
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