Aish Mohammad vs State of Haryana and Ors.

HELD : 1.1 The ‘review’ contemplated in Rule 16.28 of the Punjab Police Rules, 1936 empowers a superior authority to ‘call for the records of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.’ As such, the ‘review’ is by a superior authority and not the same authority. [Para 18][414-B-C]

1.2 The factual premise noted by the Single Judge itself was wrong, inasmuch as it was the Inspector General of Police, who had, in effect, ‘reviewed’ an order passed by his predecessorin-office by expunging the adversere marks, which was previously declined by his predecessor-in-office. [Para 17][413-E]

1.3 The incongruity has crept in the Rules due to passage of time, legally and in fact. To a judicially or legally trained mind, it is obvious that ‘review’ carries a specific connotation, but the same is not the case herein. Put simply, review is a re-look at an order passed by the same authority which passed the original order, be it a Court or an executive officer. The heading to the rule above is a misnomer inasmuch as no power of ‘review’ is created or conferred, as manifest from are ading of (1), (2) and

(3) of Rule 16.28. For completeness, Rule 16.29 is entitled “Right of appeal” and Rule16.32 is labelled “Revision”. This is one part of the issue. [Para 19][414-C-E]

1.4 The Rules, originally framed in 1934, contemplated the authorities as “The Inspector-General, a Deputy Inspector-General, and a Superintendent of Police”. The “Inspector-General” of that time [when the service was called Imperial/Indian Police] headed the State Police, but is today known as, in most States and Union Territories, barring a handful, in the hierarchy of the State Police, as the Director-General of Police, an officer drawn from the Indian Police Service, who sits at the apex of the state police machinery. In fact, today the Inspector-General of Police is administratively subordinate to the Director-General of Police and the Additional Director-General of Police. [Para 20][414-F-G]

1.5 The Rules were also framed at a time when the system of Ranges and Commissionerates had not been established. Indubitably, the Rules, for better or for worse (worse, we hazard) have not kept pace with the times. It cannot be appreciated why the authorities concerned are unable to update/amend the Rules with at least the correct official description of posts to obviate confusion. [Para 21][414-G-H; 415-A]

1.6 The Division Bench has not approached the issue in the manner it was required to. The reason given for interference with the Single Judge’s view is that it was highly improbable and unwarranted for the Inspector General of Police to have expunged the adverse remarks when there was a judicial verdict by the civil court refusing to do so. The said reasoning was employed despite noting the fact that even if there was any power of review, in the extant circumstances, it was wholly arbitrary. It was further observed that a judicial verdict by the civil court should have been respected. Such reasoning is also erroneous. The fact remained that, rightly or wrongly, the civil court had granted this opportunity to the appellant to move again for expunction of adverse remarks, which the appellant did. Having said that, firstly, the authorities were exercising the power conferred on them by statute, and secondly, any order which amounts to ‘review’ (in the legal sense of the word) of an earlier order by the same authority cannot be undertaken, unless specifically so conferred by the relevant statute. [Para 23][415-D-F]

1.7 The civil judge found no ground to interfere with the adverse remarks yet granted liberty to the appellant to move for expunction thereof. The civil court erred in assuming that it had the power to do so, in the absence of any such provision in the Punjab Police Rules, 1934. There may be cases where a High Court under Articles 226 or 227 of the Constitution of India or this Court in exercise of its constitutional powers may specifically direct for fresh consideration of a representation, even in the absence of specific provisions. [Para 24][415-G-H]

1.8 The observation by the civil court that the appellant could approach the authority, cannot be taken to mean that the appellant was granted carte blanche liberty in law to approach the same authority. What the civil court lost sight of was that no provision permitted the course of action suggested by it. Examined from another lens, even if the civil court’s view was to be read in the appellant’s favour, at best, he may have had some justification in approaching the Director General of Police, Haryana, being a superior authority, but the same authority could not have been approached again. On this line of reasoning, it becomes clear that even though the appellant had a window to move before the authorities again and dehors the civil court not interfering, but the same should have been to the superior authority and not the same authority, which had earlier refused expunction. [Para 26][417-B-D]

1.9 As far back as in 1971, directions were issued by the State Government that repeated representations would not be entertained as it would be contrary to Government Letter No. 2784-3S-70 dated 22.03.1971 mandating that a second representation against adverse remarks would not lie and which clarified the position that the same authority did not have any power of review for an order passed by its predecessor-in-office. [Para 27][417-E]

1.10 The Director General of Police rightly show-caused the appellant and took subsequent action thereupon. Considering the chain of events, the consequential action, cannot be said to be arbitrary or shocking the conscience of the Court, so as to warrant interference. For a person in uniformed service, like the police, adverse entry relating to his/her integrity and conduct is to be adjudged by the superior authority(ies) who record and approve such entry. Personnel having such remarks being compulsorily retired as per the statutory provisions under the Punjab Civil Services Rules, 1934, in the instant facts, is not an action this Court would like to interdict. There is no inclination to interfere with the order impugned, though for entirely different reasons than what were considered by and prevailed with the Division Bench. [Para 28][417-F-H]

High Court of Tripura v. Tirtha Sarathi Mukherjee (2019) 16 SCC 663 : [2019] 2 SCR 692; B S Hari Commandant v Union of India 2023 SCC OnLine SC 413; Sanjay Dubey v State of Madhya Pradesh 2023 SCC OnLine SC 610 – referred to.