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2009 DIGILAW 569 (JK)

Ab. Ahad Dar v. State

2009-11-19

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner, when he was holding the rank of ASI under No. 3507/NGO suffered as adverse remarks were recorded in his Annual Performance Reports for the year 1995-1996 and 1996-1997. Petitioner represented against the adverse remarks recorded in his Annual Performance Reports for the year 1995-1996 which representation was also rejected. Petitioner being aggrieved of the action of the respondents challenged the same by filing writ petition wherein he has prayed for issuance of writ of certiorari for quashing the APRs and the adverse remarks recorded by the respondents for the year 1995-1996 and 1996-1997. Petitioner further prays for issuance of writ of certiorari for quashing letter No. CID/J&K/APRs/225-26 dated 24.8.1998 whereunder he has been conveyed representation stands rejected. Petitioner has also prayed for issuance of writ of mandamus commanding the respondents to accord consideration to the petitioner for being promoted and appointed to the post of ASI retrospectively from the date his colleagues were promoted vide order dated 10th of February 1995 treating the adverse remarks recorded in the service records of the petitioner for the year 1996-1997 as inoperative, ineffectual and non-est. 2. Petitioner claims to have been discharging his duties with honesty, sincerity and utmost dedication. The adverse remarks were recorded in his Annual Performance Reports for the year 1995-1996 by Deputy Superintendent of Police and for the subsequent year i.e. 1996-1997 also by the Deputy Superintendent of Police. The claim of the petitioner is that without any basis the said adverse remarks have been recorded in the Annual Performance Reports of the petitioner. Further claim of the petitioner is that Deputy Superintendent of Police was not a competent authority in law to initiate Annual Performance Reports of the petitioner and to record adverse remarks. 3. Respondents have filed reply affidavit in which it is stated that vide order No. 270 of 1998 dated 21.8.1998, the representation filed by the petitioner against the adverse remarks recorded in Annual Performance Reports for the year 1995-1996 stands rejected and the said order has not been challenged, though same was conveyed to him vide communication No. CID/J&K/APRs/225-26 dated 24.8.1998. It is further averred that the Annual Performance Reports have been recorded in accordance with the rules. It is further averred that petitioner could seek review of the order passed against him in accordance with the J&K Police Rules but he has not availed of the remedy. It is further averred that the Annual Performance Reports have been recorded in accordance with the rules. It is further averred that petitioner could seek review of the order passed against him in accordance with the J&K Police Rules but he has not availed of the remedy. It is also pleaded that representation of the petitioner was non-statutory and that promotion order was issued in accordance with the rules and as the petitioner could not get the requisite merit, he could not be placed in the list of Sub Inspectors vide Order No. 35 of 1999 dated 10.2.1999. Heard learned counsel for the parties. Considered the matter. 4. Learned counsel for the petitioner Mr. Javed Iqbal referred to the Annexure-G of the writ petition which is copy of the Annual Performance Reports for the year 1995-1996 and 1996-1997 to show that the Annual Performance Reports have been initiated by the Deputy Superintendent of Police on 13th of March, 1997 and he has made observations about the conduct of the petitioner and recorded adverse remarks. The sheet anchor of the argument of the learned counsel for the petitioner is that procedure is provided in Rule 395 of J&K Police rules for initiation of and preparation of Annual Performance Reports. The learned counsel further referred to sub-rule (2) of Rule 395 to indicate that in terms of the mandate of said Rule, the Superintendents of the Police shall personally prepare and submit on 15th of January to the concerned District Magistrate confidential report in Form 70 on the working of all upper subordinates who have worked under them during the year under report. The sub rule further provides that the District Magistrate after recording his remarks in the appropriate column is to forward these forms to the Deputy Inspector General of Police of the concerned range by the 1st of February; who will in turn send the rolls on to the Inspector General of Police along with his remarks by the 15th of February. Then Sub Rule (3) provides for classification of the annual rolls. Rule 395 is reproduced as under:- "395. Annual Confidential Reports (1) The Deputy Inspectors-General of Police shall personally prepare and submit annually to the Inspector-General of Police on or before 15th January Confidential Rolls in Form 69 with respect to all gazetted officers who have remained posted to their ranges during the year under report. Rule 395 is reproduced as under:- "395. Annual Confidential Reports (1) The Deputy Inspectors-General of Police shall personally prepare and submit annually to the Inspector-General of Police on or before 15th January Confidential Rolls in Form 69 with respect to all gazetted officers who have remained posted to their ranges during the year under report. (2) The Superintendents of Police shall personally prepare and submit on 15h of January to the concerned District Magistrate confidential report in Form 70 on the working of all upper subordinates who have worked under them, during the year under report. The District Magistrate after recording his remarks in the appropriate column will forward these forms to the Deputy Inspector General of Police of the concerned range by the Ist of February, who will in turn send the rolls on to the Inspector-General of Police along with his remarks by the 15th of February. (3) The annual rolls shall be classified by the officer who initiates them as "A", "B", or "C". The classification will be made on the following principles:- "A"- This will indicate that the officer is of outstanding merit and integrity and deserves accelerated promotion. "B"- This will indicate that the officer is of an average type and that there is nothing against him. "C"- This will indicate that the officer is deficient both in his working as well as in his reputation. The submission of two "C" reports consecutively from two different officers will result, automatically in the institution of departmental proceedings against him with a view to his reversion or stoppage of increment. It hardly needs being pointed out that "A" reports shall be given in really deserving cases only. 4) As regards the Head Constables the District Superintendent of Police will enter annually remarks concerning them in their respective character rolls. These remarks shall indicate the views of the Superintendent of Police on the general working and the conduct of the Head Constables during the year. The year to which the remarks pertain shall be indicated in each such entry. " 5. The learned counsel submitted that the adverse remarks recorded by Deputy Superintendent of Police are not in consonance with Rule 395 of the Police Rules so they could not be read against the petitioner. 6. Mr. The year to which the remarks pertain shall be indicated in each such entry. " 5. The learned counsel submitted that the adverse remarks recorded by Deputy Superintendent of Police are not in consonance with Rule 395 of the Police Rules so they could not be read against the petitioner. 6. Mr. N. H. Shah, learned Deputy Advocate General vehemently argued that the Annual Performance Reports have been properly recorded and written by the competent authorities and no fault can be found therewith. The learned counsel when confronted with the Sub Rule 2 of Rule 395 of the J&K Police Rules, tried to justify the initiation of Annual Performance Report and recording of adverse remarks by the Deputy Superintendent of Police by virtue of Govt. order No. 677-GAD of 2001 dated 21.6.2001 which provides that the initiating officer for preparing Annual Performance Report for Sub Inspector/Assistant Sub Inspector is Deputy Superintendent of Police. The learned counsel thus submitted that the Annual Performance Reports have been initiated by the competent authority and no fault can be found with the same. 7. This writ petition deserves to be allowed on the ground that Annual Performance Reports have been initiated by an authority which is not authorized by the Rules to initiate the same. Undisputedly the Annual Performance Reports of the petitioner have been initiated by the Deputy Superintendent of Police but in terms of Sub Rule 3 of Rule 395 of the J&K Police Rules Deputy Superintendent of Police is not an authority to initiate the Annual Performance Reports and to record adverse remarks. The Govt. Order No. 677-GAD of 2001 dated 21.6.2001 which authorizes the Deputy Superintendent of Police to initiate Annual Performance Reports has been issued on 21st of June, 2001 which is prospective in nature and in the facts of this case the said order would not be attracted. Admittedly the Annual Performance Reports of the petitioner have been initiated by an authority not authorized by law and in complete breach of Sub Rule 3 of Rule 395 of the J&K Police Rules. 8. The petitioner has been denied promotion to the next higher rank at the time when his other colleagues were considered for promotion to the post of Sub Inspector apparently on the basis of the adverse remarks recorded against him which adverse remarks could not be read against him for the aforesaid reasons. 8. The petitioner has been denied promotion to the next higher rank at the time when his other colleagues were considered for promotion to the post of Sub Inspector apparently on the basis of the adverse remarks recorded against him which adverse remarks could not be read against him for the aforesaid reasons. The petitioner has been thus denied consideration for being promoted to the next higher rank on the ground not recognized by law and this right of consideration for promotion guaranteed by Article 16 of the Constitution stands infringed. 9. For the above stated reasons this petition is allowed. By a writ of certiorari the Annual Performance Reports initiated by Deputy Superintendent of Police and adverse remarks recorded in it for the year 1995-1996 and 1996-1997 are quashed. The competent authority, however, is not debarred for initiating and recording his observations in the Annual Performance Reports of the petitioner in accordance with Rules. 10. By writ of mandamus the respondents are further commanded that in the event nothing adverse is recorded in the Annual Performance Reports of the petitioner for the year 1995-1996 and 1996-1997 by the competent authority then he shall be considered for promotion to the next higher rank/ post of Sub Inspector from the date his other colleagues have been brought on promotion list and thereafter promoted. Appropriate orders be passed thereon. Disposed of.