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2006 DIGILAW 2849 (PNJ)

Asi Dula Singh v. State Of Punjab

2006-07-18

JAGDISH SINGH KHEHAR, KIRAN ANAND LALL

body2006
Judgment J. S. Khehar, J. 1. Learned counsel for the petitioners asserts that the instant writ petition has been rendered infructuous qua petitioners No.1 and 3 on account of the fact that petitioners Nos.1 and 3 have been promoted substantively to the rank of Assistant Sub Inspectors of Police during the pendency of the writ petition. Writ petition qua petitioners No.1 and 3, is accordingly, dismissed as infructuous. 2. In exercise of the powers vested in the respondents under Rule 13.2a of the Punjab Police Rules, petitioners Nos.2 and 4 to 5 were allowed to officiate against the rank of Assistant Sub Inspector of Police under the "own rank and pay" status, whereas the rank of Sub Inspector of police was granted to petitioner No.6. It is, therefore, that the petitioners were discharging duties, against a rank, higher than the rank, against which they were substantively appointed. This position was sought to be reversed by the impugned order dated 24.3.2003 (Annexure P1 ). 3. A perusal of the impugned order reveals, that the officiating rank granted to the petitioners was being withdrawn upon the issuance of show cause notice to them, on account of the fact, that all the petitioners had been awarded major punishments, after their posting as Assistant Sub inspectors/sub Inspector (in their own rank and pay ). The impugned order further narrates, that it had been clarified in their original orders of officiation, that in case their work and conduct deteriorated, they would be reverted to their substantive rank, at any time. After recording the aforesaid factual position, affirming that major punishments have been inflicted upon the petitioners after the vesting in them their own rank and pay status, they were being reverted with immediate effect. 4. The impugned order dated 24.3.2003 (Annexure P1) which is subject matter of challenge at the hands of the petitioners, on the basis of such an averment, cannot normally be accepted. It is, however, submitted on behalf of the petitioners, that none of the petitioners has been subjected to any punishment, after the vesting in them, their own rank and pay status, against the posts of Assistant Sub Inspectors/sub Inspector of police. This aspect of the fact stands noticed in our order dated 23.5.2006. It is, however, submitted on behalf of the petitioners, that none of the petitioners has been subjected to any punishment, after the vesting in them, their own rank and pay status, against the posts of Assistant Sub Inspectors/sub Inspector of police. This aspect of the fact stands noticed in our order dated 23.5.2006. It is, therefore, that we required the learned for the respondents, to affirm from the pleadings of this case, or from the official record, whether or not the factual position depicted in the impugned order was correct. Learned counsel for the respondents acknowledged that none of the petitioners has been inflicted with any punishment after the vesting in them of their own rank and pay status. 5. In view of the aforesaid submission at the hands of the learned counsel for the respondents, it is apparent that the reversion of the petitioners i. e. withdrawal of their own rank and pay status, is based on factually incorrect premise. That being so, the impugned order necessarily will have to be set aside. 6. Despite the aforesaid factual position, learned counsel for the respondents, invited our attention to Rule 13.2a of the Punjab Police rules, so as to assert, that an official granted local rank or own rank and pay status can be required to discharge his duties in the said capacity for a period of six months in the first instance, whereupon, an express order of extension has to be passed for a further period of six months on every occasion when extension is granted. It is, therefore, the contention of the learned counsel for the respondents that the petitioners have no right to continue beyond a period of six months in terms of Rule 13.2-A of the punjab Police Rules. 7. It is not possible for us to accept the aforesaid contention of the learned counsel for the respondents for two reasons. Firstly, the impugned order by which the petitioners have been reverted to their substantive rank does not assert that it is based on Rule 13.2a of the punjab Police Rules. The validity of impugned order must necessarily be tested on the basis of reasons recorded in the impugned order. Firstly, the impugned order by which the petitioners have been reverted to their substantive rank does not assert that it is based on Rule 13.2a of the punjab Police Rules. The validity of impugned order must necessarily be tested on the basis of reasons recorded in the impugned order. In this behalf reference may be made to the decision rendered by the Apex Court in Mohinder Singh Gill V/s. Chief Election Commissioner, AIR 1978 supreme Court 851, relevant part of which is extracted hereunder:- "when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose j. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18 ). Public orders publicly made, in exercise of a statutory authority can not be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine, become better as they grow older. " Secondly, paragraph 13 (iii) of the writ petition records that persons junior to the petitioners, who were similarly granted own rank and pay status,and that too- after the petitioners, have been allowed to continue in their capacities as such, despite the fact that they have been inflicted major punishments. Paragraph 13 (iii) of the writ petition is extracted hereunder:- "13. (iii) That the impugned order Annexure P/1 is also discriminatory and violative of Article 14 of the Constitution of india because junior to the petitioners who have been awarded major punishments have not been reverted from the DRP rank i. e. Assistant Sub Inspectors. One such example is ASI Som Nath no.1814/ldh. He joined as Constable on 20.10.81. (iii) That the impugned order Annexure P/1 is also discriminatory and violative of Article 14 of the Constitution of india because junior to the petitioners who have been awarded major punishments have not been reverted from the DRP rank i. e. Assistant Sub Inspectors. One such example is ASI Som Nath no.1814/ldh. He joined as Constable on 20.10.81. given promotion List C-II on 29.7.88, promoted as Head Constable on 1.1.92 and given ORP rank as ASI on 20.4.94. It is pertinent mention here that one year service of ASI Som Nath was permanently forfeited vide order dated 21.4.1994. His 3 years service was again forfeited on 24.5.2002. Inspite of the major penalties awarded to ASI Som Nath No.1814/ludhiana he is enjoying the rank of ASI/orp, therefore, the impugned order is discriminatory, arbitrary and must be struck down. " 8. The response thereto in the written statement has been to the following effect:- "13. (iii) That the perusal of the contents of sub para (iii) is self explanatory. The official mentioned in the present para has been awarded punishment as and when misconduct was proved or noticed. Further, it is the discretion of the competent authority to decide that what type of punishment is to be given in the case of mis-conduct or deficiency in service, in different cases against the defaulter official. " 9. It is apparent from the written statement that the factual position asserted in paragraph 13 (iii) of the writ petition has not been disputed at the hands of the respondents. In the background of the fact that persons, who are junior to the petitioners, and were granted the own rank and pay status subsequent to the petitioners, have been allowed to continue despite the fact that they have been subjected to major penalties and despite the fact that the petitioners were not subjected to any punishment (major or minor)after they were granted the said status, we are of the view that the action of the respondents reverting the petitioners is in clear violation of Articles 14 and 16 of the Constitution of India being arbitrary and discriminatory. 10. For the reasons recorded above, we find no merit in the assertions/submissions advanced by the learned counsel for the respondents. 10. For the reasons recorded above, we find no merit in the assertions/submissions advanced by the learned counsel for the respondents. Since the impugned order is based on an incorrect evaluation of the factual position, we are satisfied that the impugned order dated 24.3.2003 deserves to be set aside qua petitioners Nos.2,4,5 and 6. The same is accordingly set aside. Allowed in the same terms.