Supreme Court of India
VINOD KUMARversusSTATE OF HARYANA & ORS.
- Citation
- 2013 INSC 719
- Decided
- 24 October 2013
- Disposal
- Disposed off
- Bench
- S MUKHOPADHAYA
Holding
Second representations after the statutory period are not maintainable, a successor DGP cannot reopen a predecessor's order unless it is ultra vires, and mercy petitions after a rejected revision are not permissible; thus the first and third groups of appeals were dismissed and the second group was allowed.
Summary
The case involved several police officials whose adverse entries in Annual Confidential Reports (ACRs) were expunged by a Director General of Police (DGP) after they filed second representations many years after the first representation was rejected. The High Court had restored the original adverse remarks, leading to multiple civil appeals before the Supreme Court. The Court examined whether a second representation after a substantial lapse of time is permissible under the 1962 Policy Instructions and the 1999 Standing Order, and whether a successor DGP can overturn a predecessor's order that was ultra vires. It also considered the legality of filing a mercy petition after a revision under Punjab Police Rules, and whether a "warning" constitutes a punishable offence for compulsory retirement. The Court held that second representations after the prescribed period are not maintainable, a successor cannot reopen a predecessor's order unless it is ultra vires, and mercy petitions after a rejected revision are impermissible; consequently, the first and third groups of appeals were dismissed while the second group was allowed, reinstating the officials and quashing the orders restoring adverse remarks.
Issues considered
- Whether a second representation against adverse ACR entries made after a substantial lapse of time is permissible under the 1962 Policy Instructions and the 1999 Standing Order.
- Whether a successor DGP may review and reverse an order of a predecessor that expunged adverse remarks, absent jurisdictional or ultra vires grounds.
- Whether a mercy petition filed after a revision petition is permissible under Punjab Police Rules, 1934 (Rule 16.32).
- Whether a "warning" recorded in service records amounts to a punishable offence for the purpose of compulsory retirement.
- Scope of judicial review of administrative actions – irrationality, unreasonableness, procedural impropriety.
Legislation cited
- Policy Instructions dated 28‑08‑1962
- Punjab Police Rules, 1934s. 13.17, s. 14.7, s. 16.28, s. 16.32
- Standing Order No. 65/1998 dated 08‑02‑1999
Subjects
Service LawAnnual Confidential ReportRepresentationAdministrative LawJudicial ReviewDisciplinary ProceedingsMercy PetitionPunjab Police RulesStanding OrdersAdverse Remarks
Judgment
' :/
[2013] 11 S.C.R. 471
VINOD KUMAR A
v.
STATE OF HARYANA & ORS.
(Civil Appeal No. 392 of 2008)
OCTOBER 24, 2013
B
[SUDHANSU JYOTI MUKHOPADHAYA AND
A.K. SIKRI, JJ.]
Service Law:
c
Annual confidential Report - Adverse entry -
Representation against - Rejection of - Second
representation against the adverse entry after substantial
lapse of time, after having exhausted all the departmental
remedies unsuccessfully - Expunction of the remarks - 0
Restoration of adverse remark on the ground that second
representation not permissible - Held: Second representation
was not maintainable - It was against the Office Policy
Instructions of the year 1962 and Standing Order of the year
1999 and also made after lapse of substantial time - E
Restoration of adverse remarks was correct.
Annual Confidential Report - Adverse entry -
Representation against - Rejection of - Review against -
Before higher authority - Expunction of adverse remarks -
Restoration of adverse remarks on the ground that second F
representation against the remarks not maintainable - Held:
Restoration of adverse remarks were not correct,· as there was
no second representation to the same authority - In fact, it
was review to higher authority within statutorily prescribed
period which is permissible under the Service Rules - G
Dismissal of the official on the basis of the adverse remarks
is also nbt tenable.
Disciplinary proceeding - Penalty imposed on the
471 H
472 . SUPREME COURT REPORTS [2013) 11 S.C.R.
A officials - Revoked on their moving mercy petition, which was
moved by them after exhausting all the departmental
remedies - Restoration of penalty - Held: The penalty was
rightly restored - Under disciplinary rules, no remedy is
available after revision petition - In the present cases, after
B dismissal of revision petition, another petition raising plea of
mercy would not be permissible - The mercy petition was also
not filed within time - Punjab Police Rules, 1934 - r. 16. 32.
Administrative Law:
C Administrative order - Judicial Review - Scope of - Held:
Interference with the order of administrative authority is
permissible, if it is irrational, unreasonable or there is
procedural impropriety.
0 Administrative decision - Scope of - Held:
Administrative decision must be related to the purpose of
enabling provisions of Rules or Statutes - The authority has
to act within the limits of the Rules framed delineating the
powers of the authority as well as the procedure to be followed.
E Administrative decision -· Decision of predecessor officer
- Overturning of - By the successor officer - Held: The
successor officer is not entitled to review and reopen the cases
decided by his predecessor, unless the order is without
jurisdiction, or ultra vires or was exfacie an act of favouratism.
F
Administrative .review - Held: Illegal or ultra vires
decisions which fall within scope of judicial review, can be
undone by the administrative authorities themselves by review
of such orders, by following principles of natural justice.
G The present Appeals/Petitions are categorized in
three groups on factual basis.
First Group
In the first group of cases, adverse entries were made
H
VINOD KUMAR v. STATE OF HARYANA 473
in the Annual Confidential Reports of the police officials A
in question. The said adverse remarks were expunged
after substantial lapse of time after obtaining fresh
representation, even after all the departmental remedies
had been exhausted unsuccessfully. After issuing notice
to the officials concerned, the earlier orders were B
restored. These orders were challenged by the officials
concerned, by filing writ petition. The same were
dismissed by High Court. Hence Civil Appeal Nos. 392/
2008, 393/2008, 395/2008, 402/2008, 405/2008 and SLP(C)
No. 5080/2008 were filed. c
Second Group:
In this group of cases, the order rejecting the
representation questioning adverse entries, were
challenged in revision to the higher authority immediately D
thereafter. The authority expunged 1he adverse remarks.
In these cases also order giving adverse remarks were
restored after issuing show cause notice, on the ground
that no second representation lied against adverse
remarks. Writ petitions (of the appellants/petitioners in E
C.A. Nos. 396/2008, 400/2008 and SLP No.s. 32653/2011
and 3932/2008) challenging the orders were dismissed by
High Court holding that second representation was not
acceptable. The writ petitions of the officials (the
appellants in C.A. Nos. 459/2009 and 592/2009) were F
allowed by High Court.
One of the police officials in this group, i.e. the
appellant in C.A. No. 396/2008, was compulsorily retired
on the basis of the adverse remarks. He challenged the
order of compulsory retirement, which was dismissed by G
the High Court, against which order he has filed SLP (C)
No. 32653/2008. Hence Civil Appeal Nos. 396/2008, 4001
2008 and Special Leave Petititon Nos. 32653/2011 and
3932/2008 were filed by police officials and C.A. Nos. 459/
2009 and 592/2009 were filed by the State. H
474 SUPREME COURT REPORTS [2013] 11 S,C.R
A Third Group:
In this group of cases penalty were imposed on the
police officials as a result of disciplinary proceedings.
The officials, after exhausting all the departmental
8 remedies filed mercy petition, whereby the penalty
imposed were set aside. Later, after issuing show cause
notice, penalty orders were restored on the ground that
there was no provision in the Rules for entertaining
Mercy Petition by the DGP without new material, once
revision petition of the official had already been
C considered and rejected. Writ petition challenging the
order was dismissed by High Court. Hence the Civil
Appeal Nos. 1721/2008 and 1811/2008 were filed by the
aggrieved police officials.
D Dismissing the appeals in the first group; allowing
the appeals/petitions of the police officials in the second
group; dismissing the State appeals in second group,
and dismissing the appeals in the third group of cases,
the Court
E
HELD:
1st Group Cases:
C.A. No. 392 of 2008:
F
1.1. The second representation preferred by the
appellant, in which the ACRs were expunged was not
permissible. It was not only contrary to Policy
Instructions dated 28.8.1962 and Standing Order No.65/
1998 dated 8.2.1999, but was made after 9 % years from
G the date when first representation against the ACR was
rejected. [Para 16] [491-H; 492-A]
1.2. The general principle is that merely because
there is a change in the regime or when the successor
H assumes the office, he would not be entitled to review
ViNOD KUMAR v. STATE OF HARYANA 475
and reopen the cases decided by his predecessor. This A
proposition applies in a situation where order of the
predecessor resulted in legal, binding and conclusive
decision. However, the position would be different when
it is-found that the order of the predecessor was without
jurisdiction or when a palpably illegal order was passed B
disregarding all the cannons of administrative law viz.
when the predecessor's decision was without jurisdiction
or ultra vires or when it was exfacie an act of favoritism.
[Para 17] [492-8-E]
1.3. In the present case not only the order passed by C
earlier DGP, was ultra vires, as that was not backed by
any authority vested in it under the Rules as the
representation/ mercy petition was not maintainable, even
while exercising its discretion in passing that order, the
alleged reasons are abhorrent to the good D
administration/ governance and in fact there was no valid
reason or justification shown in exercise of the non-
existent power. It was, thus, not a case of mere discretion
which the DGP was empowered to exercise or the
exercise of power on rational basis. Undue sympathy, E
that too without stating any such sympathetic grounds
would be anathema to fairness. There has to be fairness
in the administrative action and it should be free from
vice of arbitrariness. (Para 17] [492-E-H]
F
Roberts vs. Hopwood; 1925 All E.R. 24 - referred to.
1.4. No doubt, the scope of judicial review is limited
and the courts do not go into the merits of the decision
taken by the administrative authorities but are concerned
with the decision making process. Interference with the G
order of the administrative authority is permissible when
it is found to be irrational, unreasonable or there is
procedural impropriety. However, where reasonable
conduct is expected, the criterion of reasonableness is
not subjective but objective; albeit the onus of H
476 SUPREME COURT REPORTS (2013] 11 S.C.R.
A establishment of unreasonableness rests upon the
person challenging the validity of the acts. It is also trite
that while exercising limited power of judicial review, the
court can examine whether administrative decisions in
exercise of powers, even if conferred in subjective terms
s are made 'in good faith and on relevant considerations.
The courts inquire whether a reasonable man could have
come to the decision in question without misdirecting
himself on the law or facts in a material respect. [Para 18]
[493-D-G]
c M.A.Rasheed and Ors. vs. The State of Kera/a; (1974) 2
SCC 687: 1975 (2) SCR 96 - relied on.
1.5. The decision of the administrative authority must
be related to the purpose of the enabling provisions of
D Rules or Statutes, as the case may be. If they are
manifestly unjust or outrageous or directed to an
unauthorized end, such decisions can be set aside as
arbitrary and unreasonable. Likewise, when action taken
is ultra vires, such action/decision has no legal basis and
E can be set aside on that ground. When there are Rules
framed delineating the powers of the authority as well as
the procedure to be followed while exercising those
powers, the authority has to act within the limits defined
by those Rules. A repository of power acts ultra vires
F either when he acts in excess of his power in the narrow
sense or when he abuses his power by acting in bad faith
or for an inadmissible purpose or on irrelevant grounds
or without regard to relevant considerations or with
gross unreasonableness. [Para 18] [493-G-H; 494-A-C]
G Shri Sitaram Sugar Co.Ltd. vs. Union of India (1990) 3
SCC 223: 1990 (1) SCR 909 - relied on.
1.6. Thus, if wrong and illegal acts, applying the
parameters of judicial review can be set aside by the
H courts, obviously the same mischief can be undone by
VINOD KUMAR v. STATE OF HARYANA 477
the administrative authorities themselves by reviewing A
such an order if found to be ultra vires. Of course, it is to
be done after following the principles of natural justice.
This is precisely the position in the instant case and it
was open to the respondents to take corrective measures
by annulling the palpably illegal order of the earlier DGP. B
(Para 19] (496-A-B]
C.A. No. 393 of 2008
2. In this case also not only second representation
was made after more than 7 years, but there was no new C
material or facts as well which were given in the second
representation. Furthermore, the reasons given for
expunging the remarks on "corruption" and substituting
the same by "good remarks" is shocking and untenable.
Simply because the appellant allegedly showed D
improvement and earned good entries in the subsequent
years cannot be a ground to erase the earlier remarks
recorded 7 years ago thereby treating him as a good
officer even for the earlier period i.e. 25.4.1994 to
31.3.1995. The petition of the appellant was thus, rightly E
dismissed by the High Court. [Para 22] [496-H; 497-A-B]
CA No. 395 of 2008
3. A mercy petition, in the form of 4th representation,
at the hands of DGP, Haryana was impermissible in law. F
The writ petition of the appellant was, therefore, rightly
dismissed. [Para 28] [499-C-D]
C.A. No. 402 of 2008
4. In this case also fresh representation was made G
after a lapse of more than 4 years, and the adverse
remarks were expunged. This case is thus, on the same
footing as in C.A. No. 392/2008. [Para 29) [499-E-F]
H
478 SUPREME COURT REPORTS [2013) 11 S.C.R.
A C.A. No. 405 of 2008
5. The appellant had earlier exhausted the remedy of
first representation before the immediate officer and
second representation to the higher officer namely DGP.
Thereafter, DGP could not entertain any further
B representation or review except on "new facts". Record
reveals that no such new facts were pleaded. [Para 30)
[500-B-C]
2nd Group Cases
C C.A. No. 396 of 2008 & SLP(C)No. 32653 of 2011.
6.1. As per the policy instructions dated 28.8.1962,
once a representation is rejected by the immediate
superior officer, one more representation is permissible
and allowed to be made to the next higher authority. This
0
precisely happened in the instant case. First
representation was to the Inspector-General of Police
which was rejected on 10.3.2003 and within few days, the
appellant made second representation which was
allowed ~n 2.5.2003. Thus, not only this representation
E was made within stipulated period prescribed under the
Rules namely six months, which is prescribed in the
Standing Order, it was made to the higher authority as
well. (Para 38) (502-F-H]
F 6.2. Once, it is found that the revision or second
representation to the higher authority was made within
prescribed period and such a representation to the higher
authority was permissible, it cannot be said in this case
that the order of the DGP, was without jurisdiction i.e. on
G a representation "which was not permissible" in law.
Therefore, three years thereafter, the case could not be
re-opened and order dated 25.2003 could be interdicted
by the successor. [Para 39] (503-B-C]
7.1. The adverse remarks for the period in question
H no longer remain in the service record of the appellant
VINOD KUMAR v. STATE OF HARYANA 479
and for this period his rating now is "good" to which he A
was upgraded vide orders dated 2.5.2003. In so far as
award of "warning" is concerned, "warning" is not a
punishment prescribed under the Rules. It was not given
to him after holding any inquiry. Therefore, such a
warning recorded administratively in a service record B
cannot be the sole basis of compulsory retirement. [Para
43] [504-B-D]
7.2. The appellant shall be reinstated in service in the
same position on which he was working as on the date C
of compulsory retirement with consequential benefits in
case he has not already attained the age of
superannuation. However, if he has already attained the
age of superannuation, he shall be treated as deemed to
be in service throughout, as if no compulsory retirement
orders were passed and will be given consequential D
benefits including pay for the intervening period and
pensionary benefits on that basis. [Para 44] [504-E-F]
C.A. Nos. 400 of 2008 459/2009, 592/2009 and SLP (C) No.
3932/2008: E
8. The aggrieved police officials in these appeals/
petitions are also identically situated as the appellant in
C.A. No. 396 of 2008. It was not a case of second
representation to the same authority. Another
F
representation to the higher authority was made which
is permissible under the Rules and that too immediately
after their first representation by the IGP was rejected.
Second representation to a higher authority was clearly
maintainable. [Paras 45, 47 and 49] [505-C, G-H; 506-A;
507-D] G
3rd Group Cases:
C.A. No. 1721 of 2008:
9.1. Under Rule 16.32 of Punjab Police Rules, 1934 H
480 SUPREME COURT REPORTS (2013] 11 S.C.R
A an employee can seek Revision either on the ground of
material irregularity in the proceedings or on provision of
fresh evidence. In the alternative he can submit Revision
Petition raising a plea for mercy. When the Revision
Petition is earlier rejected on merits, another revision
B petition raising the plea for mercy would not be
permissible. Moreover, no grounds for mercy are stated
except showing that lenient view be taken. [Para 61] (511-
B-C]
9.2. In the present case, the mercy petition was not
C filed within one month. Further, it was not filed on the
ground of material irregularity in the proceedings or by
producing any fresh evidence. On the contrary, the DGP
while allowing the mercy petition specifically recorded
that there was no irregularity in the conduct of
D departmental proceedings. In spite thereof, he cancelled
the order of penalty without giving any cogent reasons.
Such an order was palpably illegal and was rightly set
right departmentally. [Para 62] [511-C-E]
,•
E . C.A. No. 1811 of 2008
10. In the present case, also such a mercy petition was
not maintainable which was not only filed belatedly but no
fresh material was also furnished. [Para 64] [512~8]
F Case Law Reference:
1925 All E.R. 24 referred to Para 17
1975 (2) SCR 96 relied on Para 18
1990 (1) SCR 909 relied on Para 18
G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 392
of 2008.
From the Judgment & Order dated 04.04.2007 of the High
Court of Punjab & Haryana at Chandigarh in CWP No. 9805
H of 2006.
,,
VINOD KUMAR v. STATE OF HARYANA 481
WITH A
C.A. Nos. 393, 396, 405, 395, 400, 402, 1811, 1721, 459 of
2008 & 592 of 2009, SLP(C)No. 5080 of 2008, C.A. 9455 &
9456 of 2013.
P.S. Patwalia, Manjit Singh, Addi. Adv. S. Ranjit Kumar, B
Ashok K. Mahajan, Prem Malhotra, Pradeep Dahiya, S.K.
Sabharwal, Kamal Mohan Gupta, Dr. Sukhdev Sharma, Neeraj
Srivastava, Urvashi Arora, Dr. Kailash Chand, Arunabh
Chowdhury, Anupam Lal Das, V. Tomar Naveen Sehrawat,
Aftab Ali Khan, Daya Krishan Sharma, Nupur Choudhary, Vinay C
Kuhar, Hitesh Malik, Naresh Bakshi for the appearing parties.
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. Though all these appeals were directed
to be heard together, during the course of hearing, it transpired D
that on facts all these cases are not identical or of similar
nature. At the same time these appeals can be categorized in
three groups. These appeals have arisen from the judgments
of Punjab and Haryana High Court. First judgment in point is
dated 4.4.2007, which is the main judgment, passed by the High E
Court in batch of writ petitions with CWP No. 9805 of 2006 as
the lead case. Appeal in the said case is C.A. No. 392 of 2008.
Therefore, we propose to start from this appeal so that the
veracity or the legality of the main judgment is discussed. Some
of other appeals fall in this group and discussions in other F
groups of appeals would also flow from this case. In this manner,
we would be in a position to proceed systematically and
coherently.
/st Group Cases G
C.A. No. 392 of 2008
2. The appellant in this appeal was recruited into the police
service in the State of Haryana as a Constable in the year 1971.
He got promotion to higher ranks from time to time and H
482 SUPREME COURT REPORTS (2013] 11 S.C.R.
A became Inspector of Police in the year 2002. During the course
of his employment, an adverse entry was recorded in his Annual
Confidential Report (hereinafter to be referred as 'ACR') for the
period 11.10.1989 to 31.3.1990. Though the exact report was
not placed on record either before the High Court or this Court,
B it is a common case of the parties that the ACR for this period
related to adverse comments on his "integrity". It was
acknowledged by the appellant's counsel before the High Court
that the said adverse remarks pertained to his character and
antecedents.
c 3. These remarks were recorded by the then
Superintendent of Police, Hisar Range, Hisar. As he wanted
these remarks to be expunged, the appellant made a
representation to the Deputy Inspector-General of Police, Hisar.
His representation was rejected on 26.5.1993. Initially, there
D was a stoic silence on the part of the appellant who did not
pursue the matter further for quite some time. However, he woke
up from slumber and after almost 9 years, he made another
representation to the Director General of Police, Haryana. This
was accepted by the DGP vide orders dated 15.7.2002 and
E the aforesaid remarks were expunged. The operative part of
the order of the DGP, Haryana, in this behalf, is as under:-
"Mercy Petition of ASI Vinod Kumar NO. 345/SRSS (now
SI No. 56/H) against the adverse remarks in the matter of
integrity recorded his ACR for the period from 14.11.89
F
to 31.3.1990, has been considered on the basis of
available record. The departmental enquiry was conducted
on the charges of carelessness and indiscipline in which
he was awarded a punishment of censure. No advice/
warning was awarded to him in the matter of integrity. But
G the reporting officer has doubted his integrity. Thus, t.he
adverse remarks are uncalled for and without any basis
and will not stand scrutiny of the judiciary. The mercy
petition is accepted and adverse remarks are expunged
in the interest of principles of natural justice. The
H representationist may be informed accordingly.'"
VINOD KUMAR v. STATE OF HARYANA 483
[A.K. SIKRI, J.]
4. As would be seen in almost all these appeals before A
us, the DGP had expunged adverse remarks of many such
police officials during this period namely from 1999-2002. After
the change of regime when new Director General of Police took
over the charge, he noticed this phenomena where the adverse
remarks were expunged after substantial lapse of time and/ or B
for no valid reasons and in some cases even after all the
departmental remedies had been exhausted by those officials,
unsuccessfully. The new DGP, therefore, issued Instructions
dated 9.6.2005 to all Range Inspector General of Police,
Railways and Technical Services, Haryana and the Inspector c
General of Haryana Armed Police, Madhuban. In these
Instructions, it was stated that he had come across some old
cases where remarks related to integrity were expunged after
obtaining fresh representations, despite the fact that their
earlier representation/ mercy petition/ memorial/ writ petitions
0
had been rejected/ dismissed by the competent authority/ State
Government or Courts. Many such cases were even accepted
after a lapse of 10/ 12 years. Opinion of the Legal
Remembrancer, Haryana was taken who had opined out that
in such cases expunction of remarks of the concerned
employees was wrongful and the adverse remarks recorded E
earlier should be reconstructed, after issuing show-cause
notice to these officials. Vide these Instructions, the DGP
ordered a review of all such cases.
5. Show cause notice was issued to the appellant. He F
submitted his. reply dated 22.5.2006. After considering the
same, DGP, Haryana passed the orders dated 21.6.2006
restoring/ reconstructing the earlier adverse remarks and
recalled orders dated 15.7.2002 of the DGP, Haryana vide
which the aforesaid remarks were expunged. G
6. The appellant filed petition challenging the aforesaid
Orders dated 21.6.2006. This petition was heard alongwith
some other cases where similar orders were passed and vide
common judgment dated 4.4.2007, the writ petition of the
appe/lan.t has been dismissed. H
484 SUPREME COURT REPORTS [2013] 11 S.C.R
A 7. Since this is the main judgment giving detailed reasons
for dismissing the writ petitions, it would be apt to traverse
through the same to find out the grounds of challenge laid by
the appellant and other writ petitions before the High Court as
well as the reasons given by the High Court while rejecting
B those submissions.
JUDGMENT OF THE HIGH COURT
8. The argument of the appellant before the High Court was
that second representation was permissible having regard to
C the instructions contained in Standing Order No, 65/ 1998 dated
8.2.1999 issued by the DGP. Haryana. These instructions
referred to the earlier policy instructions issued by the State
Government dated 28.8.1962 which lays down procedures for
the guidance of all departments for entertaining the
D representations against the adverse remarks. In the
Government's Instructions dated 28.8.1962, it was emphasized
that in the absence of specified procedure for entertaining the
representations against ACR, the authorities had noted that
whenever any officer in a key position is transferred, certain
E government servants think that it is a good opportunity to re-
open finally settled cases connected with their conditions of
service or disciplinary matters, which may be even several
years old. There was also a tendency of sending advance
copies of representations to all the higher authorities which was
F leading to unnecessary work at all levels. At the same time, it
was also necessary to ensure a fair chance of representation
to the government employee. Going by these considerations
the detailed procedure was laid down in those Instructions
dated 28.8.1962. It inter alia provided that if a government
G servant wishes to press his claim or to seek redress of his
grievance, the proper course was to address his immediate
official superior, or the head of office or such other authority at
the lowest level, who is competent to deal with the matter. Once
that authority decides the case, one representation be allowed
to the nexi higher authority. When the lowest competent authority
H
VINOD KUMAR v. STATE OF HARYANA 485
[A.K. SIKRI, J.]
is the Government itself, one representation is allowed asking A
for a review of Government orders. These instructions also
categorically stipulate that no further representations are allowed
except in those cases where new facts have come to light and
representation on such ground would be considered by the
original deciding authority. Period of six months is provided for B
making such a representation. There is also a provision for
allowing one memorial which is to be decided at Government
level in terms of Instructions dated 12.2.1952. Second memorial
is permissible if it furnishes new material grounds requiring re-
consideration. Relevant portions of these Instructions, stating c
the aforesaid position, is extracted below:
" After Careful consideration the following procedure is laid
down for the guidance of all departments:-
(a) Whenever in any matter connected with his D
service rights or conditions, a government servant
wishes to press his claim or to seek redress of a
grievance, the proper course for him is to address
his immediateofficial superior, or the Head of Office
or such other authority at the lowest level, as it E
competent to deal with the matter. When a case
has thus been decidedby the lowest competent
authority one representation shculd be allowed to
the next higher authority. Where the lowest
competent authority is government itself, one F
representation should be allowed, asking for a
review or government orders.
(b) If an official sends u~ a representation in
addition to those permitted under (a) above, on the
ground that certain new facts have come to light, G
that representation will be considered by the
origianl deciding authority, who will be competent
to withhold it and reject it if findsthat in fact no new
data has been given which wouldprovide any
material grounds for reconsideration." H
486 SUPREME COURT REPORTS [2013) 11 S C.R.
A 9. In n\)t-shell as per Policy Instructions dated 28.8.1962,
representations can be made. if it is a case of adverse
remarks, in the following manner:
1. Representation to immediate official superior, or
the headof office or such other authority at the
B
lowest level who iscompetent to deal with the
matter.
2. If it is rejected by the lowest authority one more
representation is allowed to the next higher
c authority.
OR
If the lowest competent authority is the Government
D itselfthen representation by way of review is
allowed to theGovernment.
3. No further representation is to be entertained except
on theground that certain new facts have come to
E light. If it isfound by the competent authority that no
new fact has beengiven he would be competent to
reject it.
4. After the representations are made in the manner
statedabove, one memorial is allowed which is to
F
be decided atGovernment level.
5. Second memorial is allowed only on furnishing new
material grounds.
G 10. As already pointed above, Instructions dated 28.8.1962
were referred to in Standing Order No. 65/1998 dated 8.2.1999.
In these Instructions, reliance was placed on the earlier
Standing Order. It reiterated the tendency to entertain belated
representations qua seniority or seeking ante-dated promotion
H or expunction of adverse remarks in ACR or appeals against
VINOD KUMAR v. STATE OF HARYANA 487
[A.K. SIKRI, J.]
punishments after lapse of number of years that too whenever A
any officer in key position is transferred. It condemned and
deprecated this practice in strong words. It also highlighted that
entertainment of such representations after long lapse of time
is not only in contravention of Rules and settled legal position
on the subject but it also creates unnecessary complications/ B
litigations and unsettles the settled inter se relativities. Apart
from issuing mandate to the effect that such delayed
representations qua seniority, promotion, ACR's etc. be not
entertained , following instructions were specifically .issued,
which are relevant in the context of entertaining representations C
against ACR:-
1. If any personnel is not satisfied with the decision of
the competent authority or next higher authority, he
may approach next higher authority to get justice as 0
per settled law within six months.
2. No competent authority shall consider any
representation against an order, if the order against
which the personnel is aggrieved is more than 5
years old. E
11. It was argued before the High Court, which was the
submission before us as well, that these instructions were
applicable only in those cases which were not covered or
governed by the Punishment and Appeal Rules. !twas argued F
that a representation was permitted to an employee in addition
to the prescribed representations as per para (b) of the Policy
Instructions dated 28.8.62 and the second representation of the
appellant which was accepted by the DGP was thus,
permissible. However, this argument was brushed aside by the G
High Court, and rightly so, taking note of the fact that as per
clause (b), further representation could be made only on the
ground that certain new facts have come to light. Further,
whereas the period specified for making this representation as
per 1962 Instructions was six months, the appellant had made
H
488 SUPREME COURT REPORTS [2013] 11 S.C.R.
A the second representation almost after nine years which was
clearly not permissible as reiterated even in 1999 instructions.
In fact, it is this mischief of re-opening the settled cases, by
making belated representations which these government
instructions aimed curbing at. The High Court in the impugned
B judgment, in this behalf, aptly remarked as under:
"Although, the contention of the learned counsel for the
petitioner seems to be attractive on first blush. however,
a perusal of clause (c) takes the wind out of the aforesaid
contention. It is clearly and emphatically pointed out, that
c any such representation permitted to be made under the
1962 instructions, has to be made within a period of six
months. It is not the case of the petitioner, that the
representation made by him was within the ambit of the
instructions of 1962. In fact, from the facts narrated
D hereinabove, it is apparent, that after the first representation
made by the petitioner was rejected on 26.5.1993,
whereafter the second representation was allegedly made
by the petitioner only on 25.2.2002 i.e. after almost nine
years."
E
12. It is manifest that after the change of guards, the
appellant took a chance by making another representation to
the new DGP and got favourable orders.
13. Even the punishment under Appeal Rules are of no
F help to the appellant. Reliance was placed on Rules 16.28 and
16.32 of Punjab Police Rules, 1934. These Rules read as
under:
"16.28. Powers to review proceedings.-
G
(1) The Inspector-General, a Deputy Inspector-
General, and a superintendent of Police may call
for the records of awards made by their
subordinates and confirm, enhance, modify or annul
H
VINOD KUMAR v. STATE OF HARYANA 489
[A.K. SIKRI, J.]
the same, or make further investigation or direct A
such to be made before passing orders.
(2) If an award of dismissal is annulled, the officer
annulling it shall state whether it is to be regarded
as suspension followed by reinstatement, or not. 8
The order should also state whether service
previous to dismissal should count for pension or
not.
(3) In all cases in which officers propose to
enhance an award theyshall, before passing final C
orders, give the defaulterconcerned an opportunity
of showing cause, eitherpersonally or in writing,
why his punishment should not be enhanced.
16.32. Review.- An officer whose appeal has been o
rejected. is prohibited from applying for a fresh
scrutiny of the evidence. Such officer may, however,
apply, within a month of the date of despatch of
appellate orders to him, to the authority next above
the prescribed appellate authority for revision on E
grounds of material irregularity in the proceedings
or on production of fresh evidence, and may submit
to the same authority a plea for mercy: provided that
no application for the revision of an order by the
Inspector-General will be entertained. An officer
F
whose appeal has been heard by the Inspector-
General may, however, submit to the Inspector-
General a plea for mercy or may apply to the
Inspector-General for a review of his appellate
order only on the ground that fresh evidence has
become available since the appellate order has G
been pronounced. This Rule does not affect the
provisions of Rule 16.28. Such application or plea
must be in English".
14. However, these are part of Rule 16 which falls in H
490 SUPREME COURT REPORTS (2013] 11 S.C R.
A Chapter XVI relating to "punishment". This Rule 16 prescribes
the procedure for conducting departmental inquiries and
imposition of penalties consequent thereto. It has nothing to do
with the confidential reports. In fact, provision relating to
Confidential Reports is contained in Rule 13.17 of the aforesaid
B Rules. Relevant portion of Rule 13.17 reads as under:-
"13.17. Annual Confidential Reports.-
(1) Superintendents shall prepare and submit annually
to the Deputy Inspector-General, after obtaining the
C District Magistrate's remarks thereon, reports in
form 13.17 on the working of all Upper
Subordinates serving under them. These reports
shall be submitted to reach the Deputy Inspector-
General on or before 15th April.
D
Deputy Inspectors-General and Assistant Inspector-
General, Government Railway Police, will add their
own remarks and retain reports on Assistant Sub-
Inspectors and Sub-Inspectors who are not on list
'F' and Sergeants will be forwarded by Deputy
E
lnspectors-Gen~ral and Assistant Inspector-
General, Government Railway Police, so as to
reach the Inspector-General on or before the 15th
May. In the cases of Indian Inspectors of the
General Line, Sub-Inspectors on list 'F' and all
F Sergeants, Deputy Inspectors-General and
Assistant Inspector-General, Government Railway
Police, will attach with each report so submitted a
duplicate copy thereof. Any remarks recorded by
the Inspector-General on the original report will be
G copied in his office on the duplicate prior to the
return of the latter report for record with the duplicate
personal file maintained in accordance with Rule
12.38 (1).
H
VINOD KUMAR v. STATE OF HARYANA 491
[A.K. SIKRI, .J.J
(2) Reports shall be of three kinds, A, B and C, and A
shall be marked as such:-
A reports.- Reports in which for special reasons
it is recommended that promotion be given
irrespective of seniority. B
B reports.- Reports in which it is recommended
that promotion be given in the ordinary course of
seniority.
C reports.- Reports in which it is recommended c
that the officer be passed over for promotion or that
the taking of departmental action on general
grounds of inefficiency or unsatisfactory conduct be
considered.
15. This Rule only states the manner in which ACR is to D
be written. We also have Rule 14.7 which may be relevant to
the context and is reproduced below:-
"14. 7 Comments on remarks of superior officer.-
E
A police officer shall not record comments on the
remarksmade by a superior officer. If a police
officer considers thatan erroneous view has been
taken of his conduct or of anymatter affecting his
administration he may refer thequestion in a
F
temperate manner through the proper channel."
16. Thus, these Rules only pertain to recording of ACRs.
There is no provision in the Rules containing any procedure for
dealing with representations against the ACRs. That is
provided in 1962 and 1999 Instructions, already taken note of G
above. Therefore, the High Court rightly rejected the contention
of the appellant predicated on these Rules. Thus, we find that
on the face of it, the second representation preferred by the
appellant, in which the ACRs were expunged was not
permissible. It was not only contrary to 1962 and 1999 H
492 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Instructions, but was made after 9 % years from the date when
first representation against the ACR was rejected.
17. We would like to make certain comments, at this
juncture, on the powers of the successor DGP, Haryana in over
B turning the decision of his predecessor who had accepted the
representation and expunged the adverse remarks in a petition
which was not maintainable and wholly unwarranted. The
general principle is that merely because there is a change in
the regime or when the successor assumes the office, he would
C not be entitled to review and reopen the cases decided by his
predecessor. That would apply in those cases where the
predecessor had passed the orders which he was empowered
to pass under the Rules and had exercised his discretion in
·taking a particular view. Therefore, this proposition applies in
a situation where order of the predecessor resulted in legal,
D binding and conclusive decision. However, the position would
be different when it is found that the order of the predecessor
was without jurisdiction or when a palpably illegal order was
passed disregarding all the cannons of administrative law viz.
when the predecessor's decision was without jurisdiction or
E ultra vires or when it was exfacie an act of favoritism. In the
present case we find that not only the order passed by e~rlier
DGP, Haryana was ultra vires, as that was not backed by any
authority vested in it under the Rules as the representation/
mercy petition was not maintainable, even while exercising its
F discretion in passing that order, the alleged reasons are
abhorrent to the good administration/ governance and in fact
there was no valid reason or justification shown in exercise of
the non existent power. It was, thus, not a case of mere
discretion which the DGP was empowered to exercise or the
G exercise of power on rational basis. Undue sympathy, that too
without stating any such sympathetic grounds would be
anathema to fairness. There has to be fairness in the
administrative action and it should be free from vice of
arbitrariness. We may usefully refer to the judgment of the
H English Court in the case of Roberts v. Hopwood; 1925 All E.R.
VINOD KUMAR v. STATE OF HARYANA 493
[A.K. SIKRI, J.]
24 laying down the law in the following terms: A
" .... A person in whom is vested a discretion must exercise
his discretion upon reasonable grounds. A discretion does
not empower a man to do what her likes merely because
he is minded to do so - he must in the exercise of his B
discretion do not what he likes but what he ought. In other
words, he must, by use of his reason, ascertain and follow
the course which reason directs. He must act
reasonably ..... "
18. The matter can be looked into from another angle as C
well. In those cases where Courts are concerned with the
judicial review of the administrative action, the parameters
within which administrative action can be reviewed by the courts
are well settled. No doubt, the scope of judicial review is limited
and the courts do not go into the merits of the decision taken D
by the administrative authorities but are concerned with the
decision making process. Interference with the order of the
administrative authority is permissible when it is found to be
irrational, unreasonable or there is procedural impropriety.
However, where reasonable conduct is expected, the criterion E
of reasonableness is not subjective but objective; albeit the
onus of establishment of unreasonableness rests upon the
person challenging the validity of the acts.· It is also trite that
while exercising limited power of judicial review on the grounds
mentioned above, the court can examine whether administrative F
decisions in exercise of powers, even if conferred in subjective
terms are made in good faith and on relevant considerations.
The courts inquire whether a reasonable man could have come
to the decision in question without misdirecting himself on the
law or facts in a material respect.(See: M.A.Rasheed & Ors. G
v. The State of Kera/a; (1974) 2 SCC 687). The decision of
the administrative authority must be related to the purpose of
the enabling provisions of Rules or Statutes, as the case may
be. If they are manifestly unjust or outrageous or directed to an
unauthorized end, such decisions can be set aside as arbitrary
H
494 SUPREME COURT REPORTS [2013] 11 S.C.R.
A and unreasonable. Likewise, when action taken is ultra vires,
such action/decision has no legal basis and can be set aside
on that ground. When there are Rules framed delineating the
powers of the authority as well as the procedure to be followed
while exercising those powers, the authority has to act within
B the limits defined by those Rules. A repository of power acts
ultra vires either when he acts in excess of his power in the
narrow sense or when he abuses his power by acting in bad
faith or for an inadmissible purpose or on irrelevant grounds
or without regard to relevant considerations or with gross
c unreasonableness. This was so explained in Shri Sitaram
Sugar Co.Ltd. v. Union of India (1990) 3 SCC 223 in the
following manner:
"A repository of power acts ultra vires either when he acts
in excess of his power in the narrow sense or when he
D abuses his power by acting in bad faith or for an
inadmissible purpose or on irrelevant grounds or without
regard to relevant considerations or with gross
unreasonableness. See Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation, [1948) 1 K.B.
E 223. In the words of Lord Macnaghten in Westminster
Corporation v. London and North Western Railway, [1905)
AC 426:
"... It is well settled that a public body invested with
F statutory powers such as those conferred upon the
Corporation must take care not to exceed or abuse
its powers. It must keep within the limits of the
authority committed to it. It must act in good faith.
And it must act reasonably. The last proposition is
involved in the second, if not in the first.. .."
G
In Barium Chemicals Ltd. and Anr. v. The Company Law
Board and Ors., : [1966] Supp. SCR ·311, this Court
states:
H "... Even if (the statutory order) is passed in good
VINOD KUMAR v. STATE OF HARYANA 495
[A.K. SIKRI, J.]
faith and with the best of intention to further the A
purpose of the legislation which confers the
powers, since the Authority has to act in
accordance with and within the limits of that
legislation, its order can also be challenged if it is
beyond those limits or is passed on grounds B
extraneous to the legislation or if there are no
grounds at all for passing it or if the grounds are
such that no one can reasonably arrive at the
opinion or satisfaction requisite under the
legislation. In any one of these situations it can well c
be said that the authority did not honestly form its
opinion or that in forming it, it did not apply its mind
to the relevant facts."
In Renusagar, AIR1988SC1737, Mukharji, J., as he then
was, states: D
"The exercise of power whether legislative or
administrative will be set aside if there is manifest
error in the exercise of such power or the exercise
of the power is manifestly arbitrary. Similarly, if the E
power has been exercised on a non-consideration
or non-application of mind to relevant factors the
exercise of power will be regarded as manifestly
erroneous. If a power (whether legislative or
administrative) is exercised on the basis of facts F
which do not exist and which are patently
erroneous, such exercise of power will stand
vitiated".
The true position, therefore, is that any act of the repository
of power, whether legislative or administrative or quasi- G
judicial, is open to challenge if it is in conflict with the
Constitution or the governing Act or the general principles
of the law of the land or it is so arbitrary or unreasonable
that no fair minded authority could ever have made it."
H
496 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 19. Thus, if wrong and illegal acts, applying the aforesaid
parameters of judicial review can be set aside by the courts,
obviously the same mischief can be undone by the
administrative authorities themselves by reviewing such an
order if found to be ultra vires. Of course, it is to be done after
B following the principles of natural justice. This is precisely the
position in the instant case aod we are of the considered
opinion that it was open to the respondents to take corrective
measures by annulling the palpably illegal order of the earlier
DGP, Haryana.
c 20. We, therefore, do not find any merit in this appeal which
is accordingly, dismissed.
C.A. No. 393 of 2008
D 21. This appeal arises out of decision in Civil Writ 9805
of 2006 which was decided by the common judgment dated
4.4.2007 already taken a note of above. In this case, ACR is
for the period 25.4.1994 - 31.3.1995. It was inter alia recorded
that there was report of corruption against this officer. The
E appellant made the representation which was rejected in the
year 1995 itself. After a lapse of almost 7 years, the appellant
gave another representation in the year 2002 which was
accepted by the DGP, Haryana who expunged the adverse
remarks, giving following reasons:
F "Representation of SI Swantanter Singh No. 225/H has
been examined in depth. Keeping in view the improvement
shown by the SI especially in view of good entries against
major punishment nil, adverse remarks so recorded in his
ACR for the period from 25.4.1994 to 31.3.1995, are
G hereby expunged and upgraded as "Good". The
representations may be informed accordingly."
22. Thus, in this case also not only second representation
was made after more than 7 years, but there was no new
H material or facts as well which were given in the second
VINOD KUMAR v. STATE OF HARYANA 497
[A.K. SIKRI, J.]
representation. Furthermore, the reasons given for expunging A
the remarks on "corruption" and substituting the same by "good
remarks" is shocking and untenable to say the least. Simply
because the appellant allegedly showed improvement and
earned good entries in the subsequent years cannot be a
ground to erase the earlier remarks recorded 7 years ago B
thereby treating him as a good officer even for the earlier period
i.e. 25.4.1994 to 31.3.1995. The petition of the appellant was
thus, rightly dismissed by the High Court. Present appeal is
totally bereft of any merits and is accordingly dismissed.
CA No. 395 of 2008
c
23. The petitioner was communicated adverse annual
confidential remarks for the period from 24.4.1998 to
31.3.1998. Relevant extract thereof is reproduced hereunder:-
D
1. Discipline Poor
2. Integrity Poor
3. Reliability Poor
E
4. Moral Character Deserves Improvement
5. General Remarks He was placed under
suspension due to
misbehaviour with Smt. Dhanc
Devi, DC/FTB was requested F
to accord sanction under PPFi
16.38 for DE. But DC/ FTB
refused to accord sanction.
24. Dissatisfied with the aforesaid annual confidential G
remarks communicated to the petitioner, the petitioner made
his first representation for the expunction thereof, on
13.12.1999. The aforesaid representation made by the
petitioner was partly accepted by an order dated 22.6.2000
inasmuch as the general remarks recorded in the annual
H
498 SUPREME COURT REPORTS [2013] 11 S.C.R.
A confidential report extracted hereinabove at Serial No. 5 were
expunged.
25. The petitioner submitted a second representation for
the expunction of his other adverse remarks on 13. 7.2000. The
8 second representation made by the petitioner was also rejected
on 27.12.2000. Dissatisfied with the aforesaid rejection, the
petitioner moved a mercy petition i.e. the 3rd representation
in his series of representations, on 9.8.2001. This mercy
·petition was rejected by the authorities on 22.11.2001. The
C petitioner, then made a 4th representation for the expunction
of annual confidential remarks communicated to him for the
period 24.4.1998 to 31.3.1999. This representation of the
petitioner was accepted by an order dated 12.6.2002
(14.6.2002). Relevant extract thereof is being reproduced
hereunder:-
D
"The representation dated 1.1.2002of H.C. Ram Kumar
No. 26/ Fatehabad against adverse remarks has been
considered and accepted. The adverse remarks recorded
in his A.C.R. For the period from 24.4.98 to 31.3.99 have
E been expunged. He may please be informed accordingly."
26. The respondents, having arrived at the conclusion, that
only one representation was competent at the hands of the
petitioner for the expunction of adverse annual confidential
remarks, acceptance of 4th representation made at the hands
F of the petitioner on 1.1.2002 by an order dated 12.6.2002 was
impermissible in law. Therefore, a show cause notice dated
4.7.2006 was issued to the petitioner. After the petitioner
submitted his reply thereto, an order dated 23.8.2006 was
passed whereby the order expunging the adverse annual
G confidential remarks dated 12.6.2002 was set aside and the
annual confidential remarks for the period 24.4.1998 to
31.3.1999, as originally recorded, subject to the modification
vide order dated 22.6.2000, was reconstructed.
H 27. Vide judgment dated 18.4.2007, the Division Bench
VINOD KUMAR v. STATE OF HARYANA 499
[A.K. SIKRI, J.]
dismissed the appellant's challenge to the orders dated A
23.8.2006 relying upon the legal position expressed in Vinod
Kumar's Case (supra). At the same time, the Court clarified that
the remarks in the ACR for the period from 24.4.1998 to
31.3.1999, which relate to the allegation of misbehaviour based
on his conduct with Smt. Dhano Devi, were actually and factually B
expunged (since a regular inquiry was conducted in this behalf
in which· he was exonerated) while deciding his first
representation which was partly accepted on 22.6.2000.
28. In so far as other remarks are concerned, in view of
our detailed discussion above, it is clear that such a mercy C
petition, in the form of 4th representation, at the hands of DGP,
Haryana was impermissible in law. The writ petition of the
appellant was, therefore, rightly dismissed. This appeal also
stands dismissed accordingly.
D
C.A. No. 402 of 2008
29. From the facts of this case also it is apparent that the
representation against the ACR for the period 1992-1993 was
rejected on 7.5.1996 and thereafter when fresh representation E
dated 20.6.2000 was made after a lapse of more than 4 years.
It was accepted vide orders dated 12.7.2000 and the adverse
remarks were expunged. This case is thus, on the same footing
as Vinod Kumar's case. The appeal is accordingly dismissed.
C.A. No. 405 of 2008 F
30. The appeal arises out of C.W.P. NO. 20401 of 2006
which was part of batch petitions decided vide common
judgment dated 4.4.2007 with lead matter in the case of Vinod
Kumar. Without stating the facts in detail, suffice is to mention G
that adverse reports is for the period 1.4:2001 to 31.3.2002
which was communicated to him on 2.7.2002.-His first
representation was rejected by IGP on 30.9.2002, he filed
second representation to the higher authority namely DGP which
was rejected on 28.1.2003. Thereafter, he made another H
500 SUPREME COURT REPORTS [2013] 11 S.C.R.
A representation (purported to be a review) before the DGP in
July, 2003 which was allowed on 30.9.2003 by expunging the
adverse remarks. After issuance of show cause notice, orders
dated 19.10.2006 were passed recalling earlier order dated
30.9.2003 and reconstructing the ACR by restoring earlier
B adverse remarks. As is clear from the above, the appellant had
earlier exhausted the remedy of first representation before the
immediate officer and second representation to the higher
officer namely DGP. Thereafter, DGP could not entertain any
further representation or review except on "new facts" Record
c reveals that no such new facts were pleaded. Thus, we do not
find any merit in this appeal as well and dismiss the same.
SLP(C)No. 5080 of 2008
31. No one appeared in this matter to address the petition
D at the time of hearing. Dismissed.
2nd Group Cases
C.A. No. 396 of 2008 & SLP(C)No. 32653 of 2011.
E 32. This appeal and SLP are filed by the same appellant
H.C. Shiv Kumar. Leave granted in SLP.
33. On the basis of those adverse remarks, the appellant
was compulsorily retired from service. Vide orders dated
F 17.3.2011, his writ petition challenging the compulsory
retirement has been dismissed against which SLP(C)No.
32653/2011 is preferred. Thus, the outcome of this SLP
depends upon the result of C.A. No. 396 of 2008.
34. Coming to C.A. No. 396 of 2008, in the case of the
G appellant, adverse remarks relate to the period 1.4.2001 to
2.10.2001 which were communicated to him on 2.7.2002. He
made the representation dated 24.8.2002 for expunction of
these remarks to the Inspector-General of Police which was
rejected on 10.3.2003. Immediately thereafter, in the month of
H March itself he filed the revision petition which was allowed on
VINOD KUMAR v. STATE OF HARYANA 501
[A.K. SIKRI. J.]
2.5.2003 expunging the adverse remarks in toto and replacing A
the same with 'good' rating.
35. The appellant was also issued show cause notice
dated 30.6.2006, in a similar manner as in other cases, stating
that as per Government's Instructions dated 28.8.1962, no 8
second representation lies against the adverse remarks.
Therefore, it was proposed to re-construct the original adverse
remarks recorded in his ACR for the period in question. The
appellant submitted his detailed reply to the aforesaid show
cause notice running into almost 20 pages. However, his reply C
did not cut any ice with the authorities and vide orders dated
25.10.2006, DGP, Haryana recalled earlier order dated
2.5.2003 and directed re-construction of the ACR by restoring
the remarks recorded earlier for the period in question i.e.
1.4.2001 to 2.10.2001. His Writ Petition against the said orders
dated 25.10.2006 has met the same fate at the hands of the D
High Court which has dismissed a Writ Petition, following
Vinod Kumar's Case (supra), and holding that second
representation submitted by a employee is not acceptable in
law. ·
E
36. We would like to point out, at this stage, that it was
also the contention of the appellant before the High Court that
on the same set of allegations on the basis of which the
adverse remarks were communicated to him, a regular
departmental inquiry was conducted against the appellant and F
the appellant had been exonerated in the said inquiry. It was
argued that for this reason adverse remarks could not remain
in his service record and the order of restoring those remarks
was illegal on this ground as well. The High Court however,
rejected this contention recording a finding that the charge sheet G
in which the inquiry was held, was dated 13.3.2001, which
naturally referred to the allegations preceding the date of
charge sheet. On the other hand, the adverse remarks were
relatable to the subsequent period and, therefore, in the opinion
of the High Court, this contention of the appeliant was untenable.
H
502 SUPREME COURT REPORTS (2013] 11 S.C.R
A 37. Mr. Patwalia. learned Senior Counsel appearing for
the appellant, after drawing our attention to the chronology of
events from the date of recording the adverse remarks to that
of expunction thereof, made a fervent plea that the case was
not covered by the principle laid down by the High Court in its
B earlier judgment in Vinod Kumar's Case (supra) and there was
an apparent error in applying that judgment in the present case
as well. His first submission in this behalf was that it was not a
case where the "second representation" was made after long
lapse of time. Secondly, his first representation was to the
c Inspector-General which was rejected and the purported
"second representation" was in fact in the nature of
representation given to the higher authority namely DGP which
was permissible under the Rules. He, thus, argued that the High
Court wrongly treated the same as second representation to
the same authority which became the cause of error on the part
0
of the High Court. He referred to the judgment of the High Court
in the case of Vinod Kumar itself where such cases as that of
the appellant, were saved after interpreting the relevant
Instructions.
E 38. We find the aforesaid contention of Mr. Patwa!ia to be
meritorious. While discussing C.A. No. 392/2008, we have
already taken note of the relevant government instructions as
well as Rules on the subject. In para 9 above, we have
summarised the position contained in the policy instructions
F dated 28.8.1962 as per which, once a representation is
rejected by the immediate superior officer, one more
representation is permissible and allowed to be made to the
next higher authority. This precisely happened in the instant
case. First representation was to the Inspector-General of
G Police which was rejected on 10.3.2003 and within few days,
the appellant made second representation which was allowed
on 2.5.2003. Thus, not only this representation was made
within stipulated period prescribed under the Rules namely six
months, which is prescribed in the Standing Order, it was made
H to the higher authority as well. It seems that this vital difference
VINOD KUMAR v. STATE OF HARYANA 503
[A.K. SIKRI, J.]
between the appellant's case from the fact situation in Vinod A
Kumar'~ Case has been overlooked by the High Court.
39. Once, we find that the revision or second
representation to the higher authority was made within
prescribed period (in fact within few days of the rejection of
8
representation by the IGP) and such a representation to the
higher authority was permissible, it cannot be said in this case
that the order of the DGP, Haryana was without jurisdiction i.e.
on a representation "which was not permissible" in law. Once,
we find this to be the factual position, we are constrained to
hold that three years thereafter, the case could not be re- C
opened and order dated 25.2003 could be interdicted by the
successor.
40. As a result, this appeal is allowed and the order of the
High Court is set aside. Result would be to allow the writ petition o
filed by the appellant before the High Court and quash the
orders dated 25.10.2006 passed by the DGP, Haryana.
41. The appellant was given show cause notice dated
24.10.2010 proposing. compulsory retirement. The ground on
which the action proposed was attached to the show cause E
notice. On perusal thereof reveals that the material sought to
be put up against the appellant was as under:
1. Adverse remarks for the period 1.4.2001 to
2.10.2001. F
2. Award of punishment of "warning" vide SP/AMB/
OB/218/08 for showing negligence in investigation
in case FIR NO. 121 dated 9.7.2008 under Section
279/ 304 A IPC, PS Narayan.
G
42. In reply, the appellant had submitted that his appeal
No. 396/08 is pending against the judgment of the High Court
in so far as AC R's for the period 1.4.2001 to 2.10.2001 is
concerned and, therefore, notice in question be withdrawn.
However, this plea of the appellant was not accepted and vide H
504 SUPREME COURT REPORTS [2013] 11 S.C.R
A orders dated 17.3.2011, appellant was ordered to be
compulsory retired from service with immediate effect. In this
order also, same two grounds namely, ACR for the period
1.4.2001 to 2.10.2001 and award of punishment of warning in
every case, are mentioned.
B
43. Since, we have allowed C.A. No. 396 of 2008, the
effect thereof is that adverse remarks for the period in question
no longer remain in the service record of the appellant and for
this period his rating now is "good" to which he was upgraded
vide orders dated 2.5.2003. In so far as award of "warning" is
C concerned, leaned Counsel for the State could not dispute that
"warning" is not a punishment prescribed under the Rules. It was
not given to him after holding any inquiry. Therefore, such a
warning recorded administratively in a service record cannot
be the sole basis of compulsory retirement.
D
44. The appellant's writ petition has been dismissed by the
High Court vide orders dated 26.12.2011. We, thus allow this
appeal and set aside the impugned judgment of the High Court.
As a consequence, the appellant shall be reinstated in service
E in the same position on which he was working as on the date
of compulsorily retirement with consequential benefits in case
he has not already attained the age of superannuation.
However, if he has already attained the age of superannuation,
he shall be treated as deemed to be in service throughout as
if no compulsory retirement orders were passed and will be
F given consequential benefits including pay for the intervening
period and pensionary benefits on that basis.
C.A. No. 400 of 2008
G 45. The ACR for the appellant pertains to 3.11.2002 to
31.3.2003 which were adverse in nature. These remarks were
conveyed to him vide memo dated 8.6.2003, the appellant
made representation against those adverse remarks vide his
communication dated 30.10.2003 which was rejected by the
H Inspector-General of Police, Hisar Range, Hisar. He filed
VINOD KUMAR v. STATE OF HARYANA 505
[A.K. SIKRI, J.]
"appeal" thereagainst to the Director General of Police within A
a few days thereafter i.e. 30.10.2003 which was accepted by
the DGP. Adverse remarks were expunged and his ACR was
upgraded to 'good'. He was given show cause notice for
reversal of the good rating and re-construction of old ACR on
15.8.2006 and order to this effect was passed, after eliciting B
his reply, on 18.10.2006 on the ground that his adverse remarks
were expunged on his "second representation" which was not
permissible in law. The aforesaid facts would demonstrate that
the appellant herein is also identically situated as the appellant
in C.A. No. 396 of 2008. For the reasons given therein, this c
appeal is also allowed and the order of the High Court is set
aside. As a consequence, writ petition of the appellant stands
allowed and the orders dated 18.10.2006 of DGP, Haryana are
hereby quashed.
SLP(C)No. 3932 of 2008 D
46. Leave granted.
47. The appeal arises out of C.W.P. No. 1249 of 2007
which was part of batch petitions decided vide common E
judgment dated 4.4.2007 with lead matter in the case of Vined
Kumar. Adverse remarks in the case of this petitioner are for
the period 1.4.2001 to 31.3.2002. His representation dated
18.7.2002 was rejected. On 30.4.2003, he filed revision/
representation against order dated 30.4.2003 to the higher F
authority namely DGP which was by the DGP vide orders dated
6.10.2003 and the adverse remarks were expunged. He was
given show cause notice dated 8.9.2006 whereafter orders
dated 3.12.2006 were passed reviewing the earlier order
dated 6.10.2003 and reconstructing the ACR by maintaining
earlier adverse report which was communicated to him in the G
beginning. From the aforesaid facts it becomes clear that it was
not a case of second representation to the same authority.
Another representation to the higher authority was made which
is permissible under the Rules and that too immediately after
H
506 SUPREME COURT REPORTS [2013] 11 S.C.R.
A his first representation by the IGP was rejected. His case is thus
para materia with C.A. No. 396 of 2008.
48. The impugned order of the High Court qua the
appellant is accordingly set aside and appeal is accordingly
allowed.
8
C.A. No. 459 of 2009
49. This appeal is filed by the State of Haryana against
the judgment of the High Court in the writ petition filed by the
c respondent. The respondent was communicated adverse ACR
for the period 5.11.00 to 31.3.2001. On 13.11.2001 he
submitted his representation dated 18.12.2001 which was
_rejected on 14.8.2002. Thereafter he filed the revision petition
dated 4.10.2002 which was allowed on 13.2.2003. However,
D this order was recalled vide orders dated 18.1.2007 after giving
show-cause notice dated 21.11.2006. From the aforesaid, it
is clear that second representation to a higher authority was
clearly maintainable and this aspect has been discussed in
detail by us while dealing with CA 396 OF 2008.
E 50. Additionally, we find that on the same allegations on
which ACR's were recorded, the respondent was also issued
charge sheet but was completely exonerated therein. The High
Court in these circumstances rightly allowed the writ petition
following its earlier judgment in the case of Randhir Singh, AS/
F vs. State of Haryana & Ors. (C.W.P. No. 867 of 2007 decided
on 29.3.2007) in the following manner:-
"In our view, the claim of the petitioner was liable to be
adjudicated upon its merits based on the judgment and
G decree dated 24.5.1999. in this behalf, it would be
pertinent to mention, that the annual confidential report for
the period 1.4.1995 to 2.7.1995 (which has been extracted
herein above), clearly reveals that the same was based on
the allegation, wherein in a departmental enquiry was
conducted against the petitioner, and the petitioner had
H
VINOD KUMAR v. STATE OF HARYANA 507
[A.K. SIKRI, J.)
been found guilty, and inflicted with the punishment of A
stoppage of two annual increments with cumulative effect.
So far as the aforesaid factual position is concerned, there
was no difference of opinion between learned counsel
representing the rival parties. However, the aforesaid
factual position underwent a change, with the passing of B
the judgment and decree at the hands of the civil judge at
Sirsa dated 24.5.1999. The findings recorded int eh
departmental enquiry which constituted the foundation and
the basis of the annual confidential report dated 30.9.1995
were set aside in the judgment and decree dated c
24.5.1999. In sum and substance, therefore, the very basis
on which the annual confidential report (under reference)
was recorded, had been annulled by the judgment and
decree dated 24.5.1999. Not only that, although liberty was
given by the trial Court o the respondents to hold a fresh
0
enquiry, yet, after a conscious application of mind, the
Government by its order dated 11. 7.2002 decided to file
the matter. That being so, we have no doubt in our min,
that the allegation contained in the charge sheet were
considered to be unjustified by the resp·ondents
themselves. Since, the basis of the aforesaid charge sheet E
was treated as unjustified by the State Government itself,
it is apparent, that the adverse remarks recorded thereon
were wholly unjustified in the facts and circumstances of
this case. We are, therefore satisfied, that the former
· Director General of Poki8ce, was fully justified in passing F
the order dated 26.8.2003, by which he ordered the
expunction of remarks communicated to the petitioner on
30. 9.1995."
51. We thus, do not find any merit in these appeal and is G
dismissed.
C.A. No. 592 of 2009
52. This appeal is also preferred by State of Haryana. The
H
508 SUPREME COURT REPORTS (2013) 11 S.C.R.
A factual position in this case is same as in C.A. No. 459 of 2008.
For same reasons, this appeal also stands dismissed.
3rd Group Cases
C.A. No. 1721 of 2008
B
53. In this appeal, subject matter is not the annual
confidential report but the departmental inquiry. Though the
orders are shadowed by same set of circumstances, here the
penalty imposed as a result of disciplinary proceedings was
c set aside on the basis of mercy petition filed by the appellant,
that too after exhausting all the departmental remedies. It
happened in the following circumstances:
The appellant was charge sheeted and departmental
inquiry conducted against him related to conduct of
D investigation in a case wherein he had implicated innocent
persons in false cases getting the accused free from police
custody and misusing his post for ulterior motives. Charges
·were proved in the inquiry on the basis of which Superintendent
of Police, Faridabad as a disciplinary authority imposed the
E penalty of stoppage of three future annual increments on
permanent basis vide order dated 17.1.1999. The appellant
filed appeal against the said order which was rejected by the
DGP on 1.3.1999. He filed revision on 20.6.2000 which was
also rejected on 13.2.2001. Under the disciplinary Rules, there
F is no further departmental remedy provided. However, the
appellant has preferred mercy petition dated 12.5.2001 to the
Secretary, Home, Government of Haryana, through proper
channel. On this mercy petition, order dated 9.7.2001 was
passed by DGP, Haryana accepting the said petition thereby
G setting aside the penalty imposed upon the appellant.
54. A perusal of the orders dated 9.7.2001 would show
that the DGP took note of the facts of the case and holding of
the inquiry. He also referred to the departmental remedy of
H appeal and revision filed by the appellant. Thereafter, it is
VINOD KUMAR v. STATE OF HARYANA 509
[A.K. SIKRI, J.]
mentioned that being satisfied with the order passed in revision A
the appellant had "preferred the instant mercy petition".
Curiously, after examining the records, the DGP also held the
view that departmental inquiry was properly conducted. lnspite
thereof, without giving any reasons and simply "taking a lenient
view", the punishment is set aside as is clear from the following B
paras of the said order.
"And whereas, I have carefully gone through the revision
petition, departmental enquiry file and the relevant records.
The instant departmental enquiry has been conducted as C
per prescribed Rules and procedure and does not suffer
from any legal infirmity various pleas taken by the .
revisionist have been examined and could to be devoid
of any merit.
Now, therefore, keeping in view the please of mercy made D
by the revisionist after taking a lenient view, the punishment
of stoppage of three future annual increments with
permanent effect is hereby set aside".
55. When this fact came to light, show-cause notice dated
E
25.8.2006 was issued stating that there was no provision in the
Rules for entertaining another petition (Mercy Petition) by the
DGP without new material, once revision petition of the
appellant had already been considered and rejected. It was,
therefore, proposed to restore the penalty orders and the
appellant was asked to show-cause against the proposed
F
action. The appellant submitted his reply and on consideration
thereof the orders dated 22.10.2006 were passed restoring the
earlier penalty order finding no merit in the lease taken by the
appellant.
G
56. Writ petition of the appellant challenging the said order
has been dismissed by the High Court. However the High Court
has directed the respondent not to make any recovery from the
appellant as he did not play any fraud or made any mis-
representation. H
510 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 57. While dealing with C.A. No. 392 of 2008, we have
already reproduced extract of the relevant Rules i.e. Rule 16.28
and 16.32 of the Punjab Police Rules, 1934. Rule 16.28 relates
to the review which had already been exhausted by the
appellant. As per Rule 16.32 such an officer is prohibited from
B applying from a fresh scrutiny of an appliance. He could
however apply, within a month of the appellate order, to the
authority next above the prescribed appellate authority for
revision on grounds of material irregularity in the proceedings.
58. Thus, such a review under Rule 16.32 is admissible
C only if some material irregularity in the proceedings is found or
some fresh evidence is surfaced.
59. Rule 16.28 is in Chapter XVI which deals with
"punishments" and various sub rules of Rule 16 in this Chapter
D cover all the aspects of punishment which include the nature of
punishments that can be imposed and the circumstances under
which such punishments can be imposed viz. either on the
basis of conviction in a judicial case or after conducting
departmental inquiry into the misconduct. These provisions also
E deal with suspension, subsistence grants etc .. Rule 16.24 deals
with the procedure which is to be adopted in departmental
inquiries. Thereafter, relevant provision is Rule 16.28 which
deals with "powers to review proceedings". Next Rule is Rule
16.29 which gives "right of appeal" to the delinquent employee.
F Rule 16.30 relates to the manner of dealing with these appeals
and Rule 16.31 enumerates the orders on appeals by
prescribing that every order shall contain the reasons.
Thereafter, comes Rule 16.32 which again deals with revision.
60. In the scheme of things, as provided, it is clear that Rule
G 16.28 is different from Rule 16.32. While Rule 16.28 deals with
Review, Rule 16.32 deals with Revision which is permissible
under certain specified circumstances, after the appeal is
rejected. It is this provision in Rule 16.32 which talks of Revision
on certain grounds namely (a) material irregularity in the
H proceedings or (b) on provision of fresh evidence.
VINOD KUMAR v. STATE OF HARYANA 511
[A.K. SIKRI, J.]
61. It also stipulates that mercy petition may be submitted A
to the same authority. There is no separate or other provision
for mercy petition which is contained in Rule 16.32 itself. Thus,
under Rule 16.32 an employee can seek Revision either on the
ground of material irregularity in the proceedings or on provision
of fresh evidence. In the alternative he can submit Revision B
Petition raising a plea for mercy. We are ,therefore, of the
opinion that when the Revision Petition is earlier rejected on
merits, another revision petition raising the plea for mercy would
not permissible. Moreover, no grounds for mercy are stated
except showing that lenient view be taken. c
62. In the present case, we also find that the mercy petition
was not filed within one month. Further, it was not filed on the
ground of material irregularity in the proceedings or by
producing any fresh evidence. On the contrary, as pointed out
above, the DGP while allowing the mercy petition specifically D
recorded that there was no irregularity in the conduct of
departmental proceedings. In spite thereof, he ca11celled the
order of penalty without giving any cogent reasons. Such a order
was palpably illegal and was rightly set right departmentally. We
thus do not find any merit in this appeal which is accordingly E
dismissed.
C.A. No. 1811 of 2008
63. This is also a case of departmental inquiry which was
held against the appellant and culminated an order of dismissal F
from service on 2.2.1999. His appeal was rejected by DIG on
1. 7 .1999. Thereafter, revision was rejected by the IGP ON
3.9.1999. More than 1 Y2 years, thereafter he preferred me_rcy
petition which was allowed by DGP, Haryana and the
punishment of dismissal was reduced to· stoppage of 5 G
increments. This order was also recalled after giving show-
ca use notice, vide orders dated 16.10.2006. Appellant
challenged this order by filing writ petition jn the High Court
which has been dismissed by the High Court on 21.8.2007.
H
512 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Order fo the High ·court is the subject matter of the present
appeal.
64. In view of our discussion in C.A. No. 1721 of 2008,
we find that here· also such a mercy petition was not
maintainable which was not only filed belatedly but no fresh
8
material was also furnished.
65. Thus, we are of the view that the order allowing the
mercy petition without reason was clearly untenable and was
rightly recalled. We thus, do not find any merit in this appeal
C either which is accordingly dismissed.
K.K.T. Appeals disposed of.
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