SUSHIL KUMARversusTHE STATE OF HARYANA & ORS

                         [2022] 16 S.C.R. 279                               279


                          SUSHIL KUMAR                                      A
                                   v.
                THE STATE OF HARYANA & ORS.
                    (Civil Appeal No. 401 of 2022)
                         JANUARY 19, 2022                                   B
        [K. M. JOSEPH AND PAMIDIGHANTAM SRI
                    NARASIMHA, JJ.]
       Punjab Police Rules, 1934: rr. 12.10, 13.1, 13.7 – Promotion
to Head Constable – Promotion under the 10% quota of outstanding
                                                                            C
performance for inclusion in the B-I List – Recommendation power
of Departmental Promotion Committee (DPC) – Power of Inspector
General of Police (IG) to review or substitute the recommendations
of Superintendent of Police (SP) – Appellant was appointed as a
Head Constable in the year 1995 – His name was recommended by
the SP under the 10% quota of outstanding performance for                   D
inclusion in the B-I List for promotion to the post of Head Constable
in the year 2004 – However, his name was dropped down by the IG
– Three years later, i.e., in 2007, his name was again forwarded by
the SP and this time it was passed by the IG, by virtue of which he
was granted promotion and was made the Officiating Head
                                                                            E
Constable from 2008 – Appellant filed writ petition in 2011 seeking
retrospective promotion with effect from 2004, his grievance was
that he should have been promoted in the year 2004 itself and that
the delay in appointing him in 2008 is illegal and arbitrary – High
Court dismissed the petition on the ground that selection is not a
matter of right – Held: In view of the clear procedure laid down            F
under Rule 13.7, the claim of the appellant fail as the assumption
that the recommendation of DPC headed by the SP is final and that
the IG has no power to review or substitute the decision is
misconceived – The Rule itself clarifies the position that the
recommendation of the SP is not final until the same is approved by
                                                                            G
the IG – Further, the powers of the IG are elucidated clearly in
r.13.7(14) – It is stated that the ‘approval’ is by the Cadre Controlling
Authority of the SP – It is the IG, who shall accord ‘approval’ only
upon scrutiny – This means if the IG is not satisfied, he shall not
accord approval – The scope of the power vested in the IG is also
indicated in the Rule which provides that he can seek clarifications        H
                                     279
280            SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A     from the DPC and also refer the list back to the SP for corrections/
      omissions if he thinks it is necessary – Thus, the recommendation of
      the DPC is not final and does not give any indefinite right to be
      appointed as Head Constable – Service law.
            Dismissing the appeal, the Court
B            HELD: 1.1 In view of the clear procedure laid down under
      the Rule 13.7, the contentions of the Appellant must fail as the
      assumption that the recommendation of DPC headed by the SP is
      final and that the IG has no power to review or substitute the
      decision is misconceived. The Rule itself clarifies the position
C     that the recommendations of the SP are not final until the same is
      approved by the IG. Further, the powers of the IG are elucidated
      clearly in Rule 13.7(14). It is stated that the ‘approval’ is by the
      Cadre Controlling Authority of the SP. It is the IG, who shall
      accord ‘approval’ only upon scrutiny. This means if the IG is not
      satisfied, he shall not accord approval. The scope of the power
D     vested in the IG is also indicated in the Rule which provides that
      he can seek clarifications from the DPC and also refer the List
      back to the SP for corrections/omissions if he thinks it is necessary.
      The recommendation of the DPC is not final. It is also evident
      that the recommendation of the DPC does not give any indefinite
E     right to be appointed as Head Constable. [Para 8, 8.1][286-F-H;
      287-A-B]
             1.2 The third stage of scrutiny before a constable is selected
      as a Head Constable. requires the candidate to be sufficiently
      high in the State Level Comparative Merit of the candidates to
F     be selected under the 10% quota. Therefore, it can never be
      contended that mere recommendation of the SP at the initial stage
      is sufficient to claim a right for promotion. The further contention
      of the Appellant is that the power of the IG is “not discretionary
      but mandatory” is also incorrect as Sub-rule 14 of Rule 13.7 clearly
      empowers the IG to exercise the power of scrutiny and grant
G     approval. This power would also extend to not granting an
      approval if the IG is not satisfied. Therefore, the power is not be
      rested solely on the basis of the word “through” in Rule 13.7(9).
      [Para 8.2][287-B-D]
           1.3 As far as the contention of Appellant that the subsequent
H     recommendation was also on the very same outstanding
    SUSHIL KUMAR v. THE STATE OF HARYANA & ORS.                            281


performance is concerned, it is to be noted that the merits and            A
accolades of the candidates recommended for promotion vary
from year to year on a comparative merit scale. The competitive
environment differs from year to year. The scrutiny is dynamic
and cannot be adjudged on the basis of a previous year’s
performance. The Appellant’s accolades may not have made a fit
                                                                           B
case to be recommended in the year 2004 but the same could
make a fit case to be considered in a subsequent year. It is the
domain of the IG as also the CDPC to analyse, consider and clear
the names of the candidates found fit to be promoted in the List
B-I for that year and it must best be left to the discretion of the
said authorities. [Para 8.3][287-E-F]                                      C
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of
2022.
      From the Judgment and Order dated 19.11.2015 of the High Court
of Punjab and Haryana at Chandigarh in LPA No. 1910 of 2010.
                                                                           D
      Surender Kumar Gupta, Chitvan Singhal, Ms. Priyanka Terdal,
Ms. Priya Mishra, Advs. for the Appellant.
       Raj Singh Rana, Addl. AG, Pankaj Kumar Singh, Dinesh Kumar
Mudgal, Vishwa Pal Singh, Ms. Kiran Bala Dewangan, Jhingan Ashwani
Omprakash, Prijender Singh Dhull, Arihant Mehta, Vikas Gothwal, Advs.      E
for the Respondents.
        The Judgment of the Court was delivered by
        PAMIDIGHANTAM SRI NARASIMHA, J.
        Leave granted.
                                                                           F
       2. This Civil Appeal arises out of the final judgment and order
dated 29.07.2015 of the High Court of Punjab and Haryana at Chandigarh
passed in LPA No. 1910 of 2011.
       3. The Appellant was appointed as a Constable in the year 1995.
It is his case that he was positioned as a Head Constable under the        G
extent ORP Policy on 21.08.2001. Due to his acts of bravery his name
was recommended by the Superintendent of Police (hereinafter ‘the
SP’) for promotion under the 10% quota of outstanding performance for
inclusion in the B-I List for promotion to the post of Head Constable in

                                                                           H
282            SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A     the year 21.01.2004. However, the Appellant’s name was dropped down
      by the Inspector General of Police (hereinafter the ‘IG’), when only 7
      out of the 9 names were forwarded to the Central Departmental Promotion
      Committee (hereinafter the ‘CDPC’). Three years thereafter, i.e., in
      2007 his name was again forwarded by the SP and this time it was
      passed by the IG, by virtue of which he was granted promotion and was
B
      made the Officiating Head Constable from 26.10.2008. It is his grievance
      that he should have been promoted in the year 2004 itself and that the
      delay in appointing him in 2008 is illegal and arbitrary. He filed a writ
      petition in 2011 seeking retrospective promotion with effect from
      21.01.2004. The Single Judge dismissed the petition on the ground that
C     selection is not a matter of right. Writ appeal was also dismissed by the
      Division Bench by the order impugned herein.
             4. The learned counsel for the Appellant, Shri Surender Kumar
      Gupta has argued that the IG has no power to interfere with the
      recommendation of the SP. He further alleges that when the SP has
D     forwarded the decision of the Departmental Promotion Committee
      (hereinafter ‘DPC’), the IG does not act as the appellate authority and
      cannot substitute his decision to that of the DPC. It is also contended
      that the IG has no power to adjudge the comparative merit in list B-I
      prepared by the DPC. He further submits that the IG has not given any
      reasons nor was the Appellant given any opportunity of hearing. He
E     alleges that he is far more meritorious than the ones who have been
      recommended by the SP and approved by the IG in 2004. It is his case
      that the decision is arbitrary because the very same credentials enabled
      him to be selected and recommended in 2007. He has therefore prayed
      for retrospective promotion from the year 2004.
F            5. The learned Additional Advocate General for the Respondent-
      State, Shri Raj Singh Rana, has submitted that the names recommended
      by the SP to the CDPC are only provisional and subject to ratification by
      the IG, and mere forwarding of the name of the Appellant by the SP will
      not create any right of promotion in his favour. He has submitted that the
G     word “through” in Rule 13.7(9) of the Punjab Police Rules, 1934 calls
      for application of mind by the IG and not mere forwarding of the
      recommendations as sent by the concerned unit head. The Respondents
      have alleged that the seven constables appointed were more qualified
      than the Appellant.

H
    SUSHIL KUMAR v. THE STATE OF HARYANA & ORS.                             283
         [PAMIDIGHANTAM SRI NARASIMHA, J.]

      The Rules:                                                            A
      6. The present appeal pertains to the promotion of Constables to
the post of Head Constables in the State of Haryana. The matters relating
to the promotion of Constables to the rank of Head Constables are
governed under the Punjab police Rules, 1934 as applicable in the State
of Haryana.                                                                 B
      6.1 The scheme of appointment and promotion is governed by the
provisions which are as follows:
      12.10 Appointment of Head Constable: Head constables shall
      be appointed by promotion from selection grade constables
      in accordance with rules 13.7 and 13.8.                               C

      13.1 Promotion from one rank to another.
      (3) For the purposes of regulating promotion amongst enrolled
      police officers six promotion lists- A,B,C,D,E and F will be
      maintained.                                                           D
      Lists A, B, C, and D shall be maintained in each district as
      prescribed in rules 13.6, 13.7, 13.8 and 13.9 and will regulate
      promotion to the selection grade of constables and to the
      ranks of head constables and assistant sub-inspector.........
       6.2 Chapter 13 of the Rules lay down the scheme for promotion.       E
Rule 13.7 is concerned with the selection of candidates for admission to
the Lower School Course at the Police Training College out of which
postings of Head Constables are made. The Head Constables are
selected out of a list of Selection Grade Candidates which is made out of
three sources being: (a) direct recruitment-(55% quota), (b) Seniority-
                                                                            F
cum-merit -(35% quota) (c) Outstanding performance-(10% quota). Rule
13.7 prescribing the method of selection, leading to the appointment of
Head Constable, to the extent that it is relevant for the 10% quota is
extracted herein below:
      “13.7 Selection of candidates for admission to courses at the
      Police Training College: List B (in Form 13.7) shall be               G
      maintained by each Superintendent of Police. It shall include
      the names of all constables selected for admission to the Lower
      School Course to be held at the Police Training College.
      Selection to the list B shall be made in the month of January
      each year and shall be limited to the number of seats allotted        H
284      SUPREME COURT REPORTS                       [2022] 16 S.C.R.


A     to the district for the year. The number of seats in Lower School
      Course in a year shall be allotted on the basis of existing
      vacancies and the vacancies likely to be created within one
      year in the respective unit. 55% of the seats allotted to a unit
      in the Lower School Course shall be filled in on the basis of
      a competitive examination, 35% on the basis of seniority-cum-
B
      fitness and 10% on the basis of consistent outstanding
      performance in job/obtaining Gold or Silver Medal in All India
      Police Games/Duty Meet/National Games or exceptional
      display of bravery during the course of performance of
      official duty…………
C     (2)(iii) All constables irrespective of their educations
      qualifications shall be eligible to be brought on list B-1, on
      the basis of consistent outstanding performance in job/
      obtaining Gold or Silver medal in All India Police Games/
      Duty Meets/National or International Games or exceptional
D     display of bravery during the course of performance of
      official duty if they are under the age of 40 years and have
      completed two years of service on the first day of January of
      the year in which selection is made. Only those constables
      shall be brought on list B-1 after two years of service, but
      before five year of service who have won a medal in
E     International Sports events like Olympics, Asian Games,
      Commonwealth Games or similar International events.
      Constables who have won medals in National Games/All India
      Police Games/Duty Meets and who are being considered for
      exceptional bravery or consistent outstanding performance
F     shall be considered only if, they have put in the minimum five
      year of service……….
      (9) Various units shall be allotted only 90% of total seats of
      the year for list B and candidates for 10% seats common to
      all units shall be selected by Central Departmental Committee.
G     For selecting 10% of the candidates on the basis of consistent
      outstanding performance in job/attaining Gold or Silver
      Medal in All India Police Games/Duty Meet/National Games
      or exceptional display of bravery in the job, each unit shall
      send its recommendation through the concerned Inspectors
      General of Police/Deputy Inspectors General of Police to the
H
    SUSHIL KUMAR v. THE STATE OF HARYANA & ORS.                             285
         [PAMIDIGHANTAM SRI NARASIMHA, J.]

      Central Departmental Promotion Committee to be appointed              A
      for the entire State by the Director General of Police. These
      10% seats shall be filled in on the basis of State level
      comparative merit of candidates sponsored by the units as
      above on the recommendation of the State level Departmental
      Promotion Committee. Such candidates recommended by the
                                                                            B
      above Departmental Promotion Committee shall be assigned
      to various units for inclusion in list B against 10% quota
      irrespective of the unit to which the candidate originally
      belongs……
      (14) A Departmental Promotion Committee headed by the
      Superintendent of Police/commandant of the concerned                  C
      district or unit and consisting of two Deputy Superintendents
      of Police shall prepare list B-1: Provided that list B-1 shall
      not be final until the same is approved by the Inspector
      General of Police/Deputy Inspector General of Police, who
      is the controlling officer of the said Superintendent of Police       D
      or Commandant. The Inspector General of Police/Deputy
      Inspector General of Police shall accord his approval only
      after due scrutiny of the list about its correctness. He will
      also be competent to refer the list back to the Superintendent
      of Police or Commandant from whom it had been received
      for correction of errors/omission, if any, in the list and will       E
      also be competent to seek clarification about some points from
      the Departmental Promotion Committee if he considers
      necessary.”
      7. The mandate of the above rule for appointment to the post of
Head Constable under the aforementioned 10% quota for outstanding           F
performance can be restated as under -
       7.1 There shall be a Departmental Promotion Committee (DPC)
in every district/unit comprising of the SP/ Commandant and two Deputy
Superintendent of Police, headed by the SP.
                                                                            G
       7.2 The DPC shall prepare a list called List B-I. The list will be
prepared from among the eligible candidates to be appointed the
requirement of which is specified under Rule 13.7. All constables
irrespective of their educational qualifications shall be eligible to be
brought on list B-I on the basis of consistent outstanding performance in
                                                                            H
286             SUPREME COURT REPORTS                            [2022] 16 S.C.R.


A     job or exceptional display of bravery during the course of performance
      of official duty if they are under the age of 40 years and have completed
      two years of service on the first day of January of the year in which
      selection is made.
             7.3 The List prepared by the DPC, headed by the SP will be
B     forwarded to the Inspector General of Police/ Deputy Inspector General
      of Police (hereinafter IG/DIG) who is the Cadre Controlling Officer of
      the SP/Commandant.
             (i) The IG/DIG will undertake and examine its correctness.
             (ii) The IG/DIG will be competent to seek clarifications from the
C                 DPC if he considers it to be necessary.
             (iii) He is also competent to refer the list back to the SP for
                   correction of any error or omission.
             (iv) The IG/DIG shall thereafter accord his approval.
D            (v) It is specifically provided that the List shall not be final until
                 the same is approved by the IG/DIG.
             7.4 IG/DIG shall send its recommendations on behalf of each unit
      to the CDPC. The CDPC is appointed by the Director General of Police,
      (hereinafter the DGP).
E            7.5 Finally, the 10% quota is allocated out of a State Level
      Comparative Merit List prepared on the basis of the list sent from each
      unit by the IG.
             Findings-

F           8. In view of the clear procedure laid down under the Rule 13.7,
      the contentions of the Appellant must fail for the following reasons-
             8.1 In the first place, the assumption that the recommendation of
      DPC headed by the SP is final and that the IG has no power to review or
      substitute the decision is misconceived. The Rule itself clarifies the position
G     that the recommendations of the SP are not final until the same is approved
      by the IG. Further, the powers of the IG are elucidated clearly in Rule
      13.7(14). It is stated that the ‘approval’ is by the Cadre Controlling
      Authority of the SP. It is the IG, who shall accord ‘approval’ only upon
      scrutiny. This means if the IG is not satisfied, he shall not accord approval.
      The scope of the power vested in the IG is also indicated in the Rule
H
     SUSHIL KUMAR v. THE STATE OF HARYANA & ORS.                               287
          [PAMIDIGHANTAM SRI NARASIMHA, J.]

which provides that he can seek clarifications from the DPC and also           A
refer the List back to the SP for corrections/omissions if he thinks it is
necessary. Having considered the Rule in its entirety, we are of the
opinion that the recommendation of the DPC is not final. It is also evident
that the recommendation of the DPC does not give any indefinite right
to be appointed as Head Constable.
                                                                               B
       8.2 The 10% quota for constables having outstanding performance
will be filled on the basis of State level comparative merits. As indicated
above, there is a three-stage scrutiny before a constable is selected as a
Head Constable. The third stage requires the candidate to be sufficiently
high in the State Level Comparative Merit of the candidates to be selected
under the 10% quota. Therefore, it can never be contended that mere            C
recommendation of the SP at the initial stage is sufficient to claim a right
for promotion. The further contention of the Appellant is that the power
of the IG is “not discretionary but mandatory” is also incorrect as
Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the power
of scrutiny and grant approval. This power would also extend to not            D
granting an approval if the IG is not satisfied. Therefore, the power is
not be rested solely on the basis of the word “through” in Rule 13.7(9).
       8.3 As far as the contention of Appellant that the subsequent
recommendation was also on the very same outstanding performance is
concerned, it is to be noted that the merits and accolades of the candidates   E
recommended for promotion vary from year to year on a comparative
merit scale. The competitive environment differs from year to year. The
scrutiny is dynamic and cannot be adjudged on the basis of a previous
year’s performance. The Appellant’s accolades may not have made a
fit case to be recommended in the year 2004 but the same could make a
fit case to be considered in a subsequent year. It is the domain of the IG     F
as also the CDPC to analyse, consider and clear the names of the
candidates found fit to be promoted in the List B-I for that year and it
must best be left to the discretion of the said authorities.
       8.4 The Single Judge as well as the Division Bench for good reasons
refrained from going into the individual comparative merit. In judicial        G
review proceedings, the Courts are concerned with the decision-making
process and not the decision itself.
       9. We are of the opinion that there is no illegality or arbitrariness
in the process of selection and for the reasons stated above we are not
                                                                               H
288             SUPREME COURT REPORTS                    [2022] 16 S.C.R.


A     inclined to interfere with the judgment of the High Court. Appeal, is
      therefore, dismissed. Parties to bear their own costs.

      Devika Gujral and Amarendra Kumar                      Appeal dismissed.
      (Assisted by : Bodhi Ramteke, LCRA)

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