1. Eight applicants who are members of Indian Police Service belonging to Haryana Cadre, have filed this O.A. jointly, with a prayer to quash the letter dated 22.5.1996, Annexure A-1 issued by the respondent No.1, State of Haryana, containing a policy decision for writing of confidential reports of Superintendents of Police and other officers, which inter-alia, provides that the confidential reports of the Superintendent of Police will be initiated by the District Magistrate (Deputy Commissioner), on three aspects (i) reputation for honesty (ii) dealings with the public and (iii) over all personality and efficiency in the matter of maintenance of law and order and also for maintaining and promoting communal harmony and curbing handling communal tension.
2. They submit that all of them belong to different batches of 1988, 1992, 1993, 1994, 1997 etc. All of them are on deputation with the Government of India, except applicant No. 2, who is working as Superintendent of Police in U.T. Chandigarh, by inter-state deputation.
IPS is an All India service and Central Government has power under Section 3 of the All India Service Act, 1951, to frame Rules for the All India Services. In exercise of such power, All India Services (Confidential Rolls) Rules, 1970 (for short "Rules of 1970") have been framed, providing for procedure for recording ACRs of IPS Officers.
Under Rule 2(e) of 1970 Rules, "Reporting Authority" means such authprity or authorities supervising the performance of the member of the service reported upon, as may be specifically empowered in this behalf by the Government. Exact designation of the Reporting, Reviewing and Accepting Authorities for officers of various ranks and designations are to be notified by the concerned State Government.
According to the position prevailing in the State of Haryana, prior to 22.5.1996, the ACRs of IPS Officers working as District Superintendent of Police were being initiated only by the Deputy Inspector General of Police, in charge of the concerned police range, who was the immediate Supervisory officer of the DSP.P.C. Wadhwa, IPS v.State of Haryana and Ors. 1984 (2) SLJ 261 (P&H) : 1984 (2) SLR 638, taking note of Section 2(e) of Rules of 1970 has held that Reporting Authority must be one who is immediately superior authority to the officer reported upon and must from the same service. Some Secretary or any other IAS Officer, who belongs to different line of service, cannot be said to be immediate superior authority of IGP. This judgment was upheld by the Hon'ble Supreme Court reported as , 4. They plead that somewhat similar instructions like Annexure A-1 in this case, were also issued by the State of M.P. in regard to IPS Officers. Those instructions were set at naught by the Hon'ble Supreme Court being ultra vires in the case titled T.N. Godavarman Thirumulkpad v. Union of India and Ors. decided on 22.9.2000, in view of the decision in the case of State of Haryana v. P.C. Wadhwa (supra), Annexure A-2.
5. In view of decision at Annexure A-1 report with the remarks recorded by DM/DC will be forwarded to the DIG of Range, who is Reporting Authority II, who will in turn send the ACR to the Divisional Commissioner, who has been designated as Reporting Authority III. Both the posts of the Deputy Commissioner and the Divisional Commissioners are held by members of the IAS, who are neither the immediate superiors of the DSP nor do they belong to IPS. Thus, an authority outside the department has been prescribed for initiating the Confidential Reports of the applicant and other DSPs working in the State of Haryana, belonging to IPS. These instructions are against the law laid down in P.C. Wadhwa (supra), as well as T.N. Godavarman Thirumulkpad (supra).
The career prospects of an IPS Officer primarily depends on the contents of his confidential reports and the same should not be recorded by someone who is not immediate superior to the officer reported upon or by someone who lacks the specialized knowledge of police working to objectively judge the professional working of the officer reported upon. It is only an officer from the department who has worked on the said post and is now holding an immediate superior post in the same department, can objectively and professionally judge and comment upon the actual working/performance of the applicants.
6. Director General of Police, respondent No. 3 wrote to respondent No.2, that the instructions dated 26.5.1996, are contrary to the law laid down by Hon'ble Supreme Court, with a request to amend or withdraw the same, Annexure A-3, dated 26.4.2001. Respondent No. 2 asked respondent No. 3 to furnish relevant material and the matter is still under correspondence, without there being a final decision on the issue. They were thus, forced to issue a legal notice on 11.9.2003, Annexure A-4, but to no avail and thus present O.A. came to be filed before this Tribunal.
7. Respondents 1 to 3 have filed a joint reply contesting the case of the applicants. It is submitted that decision in the case of P.C.Wadhwa (supra) is being cited by applicants out of context. In that case, the Court did not agree with the contention of the State Government, that the Home Secretary is the official Head of the Home Department and a superior authority to that of IGP and thus, competent to write the ACR of IGP. Other case of T.N. Godavarman Thirumulkpad (supra), also relates to officers of Forest Department and not applicable to the IPS Officers. Ministry of Home Affairs, has also issued a clarification vide O.M. dated 9.11.2004, Annexure R-1 and O.M.of DOPT dated 2.9.2004, has been annexed as Annexure R-2. The supervision of Police Administration by the Civil Administration is the cornerstone of democracy. This seems to have been amply provided for in various Sections of Cr.P.C. which entrust the task of supervision and control of criminal administration with the District Magistrate.
Maintenance of law and order is one of the basic functions on the part of civil administration in general and of the District Magistrate in particular. Thus, it cannot be said that the D.M. is not concerned with or equipped/trained for supervision of the police administration. The over riding decision taking authority of D.M. in handing riotous or public unrest conditions is another example of the basic premises of our Constitution which places the Police Administration under the supervision and control of the civil administration. Thus, the instructions are valid and it is a policy decision for regulating the relationship between various functionaries of the Executive and in such policy decisions, the Court should not interfere. Reliance is placed on Technical Executive (Anti-Pollution) Welfare Association v.Commissioner of Transport Department and Anr. 1997 (3) RSJ 100-101; State of Andhra Pradesh v. Subbarayudu and Ors. 1998 (1) SLR 476 and Government of Andhra Pradesh and Anr. v. P. Ravinder and Ors.
8. It is stated that District Administration is legacy of the Administration started by the British, which is still continuing with certain modifications. The Indian Civil Service (ICS), was replaced by Indian Administrative Services (IAS) and Imperial Police (IP) by IPS, after coming into force of the Indian Constitution. The Police Act, 1861, defines the relationship between the District Magistrate and the Superintendent of Police. The Administration of the police throughout the local jurisdiction of the Magistrate of the district shall, under the general control and direction of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendents, as the (State Government) shall consider necessary" Para No. 1.14 to 1.17 of the Punjab Police Rules (Volume 1), provides that The Commissioner exercises through his District Magistrate a general control over the administration of his division in criminal as well as in other matters, and is specially responsible for the maintenance of co-operation between the police and the magistracy and of cordial relations with the police officials of Indian States on the border. He is expected to give attention to special reports and measures for dealing with special types of crimes, the working of the Criminal Tribes Act, the location of additional police quartered in disturbed areas and the work of the prosecuting agency. It is the duty of the DIG to keep the Commissioner of the division fully informed of all matters of importance, concerning the efficiency of the police and the state of crime. The District Magistrate is the head of the criminal administration of the district and the police force is the instrument provided by Government to enable him to enforce his authority and fulfill his responsibility for the maintenance of law and order. The police force in a district is, therefore, placed by law under the general control and direction of the District Magistrate who is responsible that it carries out its duties in such a manner that effective protection is afforded to the public against lawlessness and disorder. In the exercise of this control, the District Magistrate is required to inspect police stations.
9. Rule further provides that District Magistrate shall exercise no executive authority in matters which concern solely the internal administration of the force or in question, of discipline as between police officers and their departmental superiors, but his general control extends to all other matters. In all that affects the relations between the police and public or the keeping of the public peace, the District Magistrate must be consulted and his orders complied with. He may (a) require the Superintendent to furnish him with any documents relating to the conduct of any subordinate enrolled police officer in any case in which the conduct or character of such police officers is likely to affect his dealings with the public or the prevention and detection of crime; (b) direct the Superintendent to enquire into any allegation of misconduct or neglect of duty on the part of any subordinate enrolled police in any case in which such misconduct or neglect of duty affects, or is likely to affect such officers' dealing with the public, or the prevention and detection of crime, and to submit the record to superior police authority; and (c) direct the Superintendent to furnish information on any matter connected with crime, the criminal classes, the prevention of disorder or the distribution of the police force, or on any other matter not connected solely with the internal administration of the force.
10. If further provides that in exercise of his powers of control, the District Magistrate should avoid doing anything to weaken the authority of the Superintendent. All Communications between the District Magistrate and the police shall, whenever possible, be conveyed through, and all instructions and orders to them shall similarly be issued from, the Superintendent. Duties of Superintendent towards District Magistrate have also been mentioned under which the Superintendent is to afford the District Magistrate the utmost possible assistance, both himself and through the police force under his command. He is to keep close and constant personal touch with the D.M.and shall keep him fully and promptly informed, both by personal conference and by written reports of all matters relating to crime and public order. While it is his duty to imitate action by the police, in such matters, he must keep the D.M. informed and be guided by his orders, SP shall keep the D.M. informed of his movements generally when away from headquarters, and shall conform to his wishes, should the District Magistrate, for reasons connected with the criminal administration of the district require the Superintendent of Police of proceed to any place in the District or to remain at Head quarters at any time. Under Rule 1.17, all postings, removals and transfers of officers in charge of police stations within a district, shall be made by the Superintendent with the approval of the District Magistrate. All this goes, to show that the D.M. is head of the criminal administration of the District. D.M. also functions as D.C. and is representative of the State Government. D.M. and D.C. are superior authorities to the SP and exercise superintendent and control over police in matters of maintenance of law and order in the District. Thus, the instructions of the State Government regarding recording of ACR of the police officer and others, have a definite nexus between the powers conferred and the objective to be achieved. Remarks by the D.M. on the ACR of DSP are only with respect to three aspects, as mentioned above. DIG is the main Reporting Authority of SP, who records his comments on about two dozen points relating to performance in the maintenance of discipline in the police force, crime investigation, general trains of initiative, innovativeness planning skills etc.
11. It is further submitted by respondents that Second part of Rule 2(e) of Rules of 1970 make it clear that even an officer who is not an immediate superior officer of the officer reported upon, can record the ACR even though he may belong to a different service. If it was not so, the Central Staffing Scheme of GOI wherein members of different All India Service i.e., IAS, IPS and IFS and other Central Services work in different capacities and if the contention of the applicants is accepted, the Secretary of a Department who is of IAS, will not be able to record ACR of Joint Secretary, who may belong to IPS or IFS. Even the reverse arrangement may be there, where a member of IPS is in a senior position than that of an IAS Officer. Thus, the contention of applicants is fraught with serious repercussions and is an attempt to defeat the constitutional provisions under which All India Services were constituted.
12. Respondent No. 4 has filed a separate reply. It is submitted that Government of M.P. as well as DOPT, has filed separate applications before the Apex Court, for modification or clarification of judgment dated 22.9.2000, upon which the matter was transmitted to a Central Empowered Committee (CEC) for examination of the issue. Said committee gave its recommendations to Apex Court on 27.1.2004 which were approved and the applications were dismissed on 26.4.2004. A copy of the Recommendations of the Committee is enclosed as Annexure R-3 and proceedings of Apex Court, dated 26.4.2004, are Annexure R-4. Committee had agreed with the views of DOPT, and as such order dated 22.9.2000, was issued in a particular context and should no be generalized to cover other services. The direction of the Apex Court in order dated 26.4.2004, are to be followed by all State Governments, and channel of writing ACRs is to be regulated as per the said ruling. Thus vide O.M.dated 2.9.2004, Annexure R-5, DOPT has issue clarifications in regard to direction of Apex Court in order dated 22.9.2000, which are applicable only for the Reporting, Reviewing or Accepting Authorities in respect of the confidential reports of Forest Officers working within the Forest Department and not to Forest Officers working outside the Department. The directions are not applicable to IAS and IPS. Such directions were forwarded by the respondent No. 4, to all State Governments, on 19.11.2004, Annexure R-6.
13. It is also contended by respondents that after amendment of provisions under Rule 2 of aforesaid Rules of 1970, in 1987 in section of explanation, position has totally changed. Therefore, the decision rendered in P.C. Wadhwa's case is not otherwise applicable in the present case. Moreover, applicants have not challenged these amended rules, therefore, they have no case and their request was rejected by Competent Authority with regard to writing of ACR by D.M. vide Annexure R-3, which has also not been challenged.
14. In reply to these contentions of the respondents, learned Counsel for the applicant has reiterated his submissions on the ground that the Apex Court has in fact taken note of amended provisions in T.N.Godavarman's case (supra) and also accepted the recommendations of the High Powered Committee. The said High Powered Committee has not found it appropriate that sometimes a Reporting Officer of different service with lower pay scale and less service than officer reported upon, would write ACR. While referring to these recommendations of the Committee, the contention of the Counsel for applicants is that once these recommendations were accepted by the Hon'ble Apex Court, they are to be made applicable to IPS Officers also in view of observations of the Court in Godavarman Thirumulkpad (supra).
15. We have heard learned Counsel for the parties at length and perused the material on record. Before proceeding further in the matter, we find it appropriate to examine the position with regard to writing of ACR of members of All India Service as provided under unamended Rules and Amended rules. Under unamended Rule 2 of the aforesaid rules, position was like this: 2 Definitions - In these rules, unless the context otherwise require: 2(e) "Reporting Authority" means such authority who was, during the period for which the confidential report is written, immediately superior to the member of the service and such other authority as may be specifically empowered in this behalf by the Government.
Reviewing Authority means the authority who was, during the period for which the confidential report is written, immediately superior to the Reporting Authority and such other authority as may be specifically empowered in this behalf by the Government.
16. It is these provisions, which came to be interpreted by the Hon'ble Supreme Court in the case of State of Haryana v. P.C. Wadhwa (supra), expressing an opinion that the "Reporting Authority" should be the immediate superior officer in the same service to which the member of the service belongs and same is the position in case of "Reviewing Authority" and "Accepting Authority" also. It was further held that up to the officer of the rank of Additional Principal Chief Conservator of Forests, the Reporting Authority has to be the immediately superior officer within the Forest Department. However, in so far as Principal Chief Conservator of Forests is concerned, his Reporting Authority would be a person who is familiar with the work of Principal Chief Conservator of Forests and that will be the person to whom he reports and who is superior to him in rank and hierarchy. There cannot be any dispute about the interpretation of Rule 2(e) and (f) of AIS (CR) Rules, 1970, as mentioned above. We would have been tooglad to accept the contention of learned Counsel for the applicants against impugned order, Annexure A-1, had there been no change in the rules by the Competent Authority.
17. We find that in exercise of the powers conferred by Sub-section (1) of Section 3 of All India Service Act, 1951, the Central Government, after consultation with the Governments of the States concerned, amended the All India Services (CR) Rules, 1970, to the extend that definition as provided in Rule 2 (a) and (e) underwent a change, as under: (a) "Accepting Authority" means such authority or authorities supervising the performance of the Reviewing Authority as may be specifically empowered in this behalf by the Government; (e) "Reporting Authority" means such authority or authorities supervising the performance of the member of the service reported upon as may be specifically empowered in this behalf by the Government; (f) "Reviewing Authority" means such authority or authorities supervising the performance of the Reporting Authority as may be specifically empowered in this behalf by the Government.
'Explanation--"The authority or authorities supervising the performance" referred to in Clauses (a), (e) and (f) shall not necessarily mean an authority or authorities belonging to the same service to which the Reviewing Authority, the member of the service reported upon or the Reporting Authority, as the case may be, belongs".
The Competent Authority has also inserted an explanation, which is very relevant and has changed the entire complexion of the case, in as much as the authorities writing ACRs shall not necessarily mean an authority or authorities belong to the same service, as member reported upon and such authority can also belong to a different service.
18. It goes without dispute that in the unamended Rules of 1970, the term "immediately superior to the member of the service" has been used which has been interpreted to mean by the Hon'ble Supreme Court, in the case of P.C. Wadhwa (supra) as followed in T.N. Godavarman Thirumulkpad (supra), that "Reporting Authority has to be the immediately superior officer within the Forest Department" In other words, a person from outside Department cannot be Reporting Officer of an Officer, working, in the Forest Department, except for the post of Principal Chief Conservator of Forests. But a drastic change has been brought into the Rules, by way of amendment at Annexure R-1, in which the term and definition of "Accepting Authority" "Reporting Authority" and "Reviewing Authority", has been changed to mean that such authorities would be persons who are empowered in this behalf to act as such, by the Government. Such authorities can be the persons who "supervise the performance of the member of the service reported upon" To make the things very clear, the Competent Authority has also specifically added an explanation which makes it clear beyond any shadow of doubt, that "the Authority or authorities supervising the performance" referred to in Clauses (a), (e) and (f) shall not necessarily mean "an authority or authorities belonging to the same service to which the Reviewing Authority, the member of the service, reported upon or the Reporting Authority, as the case may be, belongs".
19. Thus a bare perusal of the provisions would indicate that tone and tenure of the language used in the amended rules, as per Notification dated 8.12.1987, Annexure R-1, makes it very specific and unambiguous and that the term "authority or authorities supervising the performance" will take within its fold, even persons, who are into member of the service. In other words, if a member of IPS is a person to be reported upon, and if his immediate superior happens to be a member of IAS, who is supervising the performance of such IPS Officer, then such IAS Officer, may be belonging to a different service than IPS, would be competent and authorized to write the ACR of an IPS Officer. The dust raised on the part of the applicants with regard the entire issue, settles down by this Notification dated 8.12.1987, Annexure R-1, legality of which has been accepted by the applicants, as it has not been challenged by them. Annexure A-1, simply carries forward and puts into motion the intention of the Competent Authority, expressed in this Notification, Annexure R-1. In view of non-challenge to Annexure R-1, the O.A. would not be maintainable and merits dismissal on this short ground alone.
20. We also find that case of the applicants presented through a legal notice, dated 11.9.2003, was considered by the respondent No. 1 and it was rejected vide order at Annexure R-3, dated 15.12.2004 by passing a speaking order clearly indicating that instructions of the State Government regarding recording of ACR of the police officers have a definite nexus between the powers conferred and the objective to be achieved. Even this order has not been challenged by the applicants by not challenging this order, they have accepted its validity and veracity and as such they cannot be extended any relief, claimed in this original application as law of pleadings is very clear that any order which is adverse to the interest of a litigant is required to be challenged in the petition.
21. At this stage, learned Counsel for the applicants vehemently argued that it is very surprising that IAS and IPS, both are members of All India Services and in the case of the applicants, District Magistrates, who belong to IAS and are to record their ACRs, on three counts, happen to be junior to the applicants in length of service and as such they cannot be allowed to write the ACRs of the applicants. They further relied upon the recommendations of the Central Empowered Committee, as agreed/approved by the Hon'ble Supreme Court, on writing of ACRs, which inter-alia, provided that the CR should normally be written by an officer of higher rank and pay scale. In exceptional cases, it may also be allowed to be written by an officer in the same pay scale, provided he is senior to the officer being reported upon. It should never however, be allowed to be written by an officer of a lower rank or by an officer who is in a lower pay scale. There may be situations in which the Reporting Officer, Reviewing Officer or the Accepting Officer are from different services or departments, efforts should be made to ensure that the Reporting Officer is in a higher pay scale than the officer reported upon. This has been vehemently contested by the learned Counsel for the respondents.
22. Though the arguments raised on behalf of the applicants appears to be quite attractive, but if their suggestions and arguments are accepted, it would become practically impossible to put into operation on held and even the statutory rules would become inoperative and redundant. The interpretation of the rules, instructions and guidelines have to be done harmoniously and not in a way so as to make it unworkable. Their contention, if accepted, would mean that Government will have to think twice before ordering transfer and posting of Member of an IPS or IAS, as element of seniority will have to taken into consideration in each District, which is not provided in the scheme of things. Moreover, the recommendations of CEC, are merely in the nature of guidelines only and these have no statutory force and as such these cannot take away the effect of the Statutory Rules, Annexure R-1.
Moreover, the recommendations have been made applicable specifically to the Forest Department only inasmuch as it has also been mentioned in those recommendations that the judgment of the Hon'ble Supreme Court, is in a particular context and is not to be generalized to cover other services. If a Forest Officer is working in the Secretariat or in another department, where his immediate Supervising Officer is a non-forest officer, his ACR should be written by such an officer. Once it has been specifically decided by DOPT that recommendations of CEC would not be applicable to other services, we take if that the same would not be applicable to the category of the applicants who are members of the IPS. Moreover, adherence to Reporting Officer being in higher in scale or rank or senior to the officer reported upon, would not be practically possible and keeping this in view the DOPT has also issued clarification on 2.9.2004, Annexure R-5, that the directions dated 22.9.2000, would not apply to services other than Forest Officer, Surprisingly, this order has also gone unchallenged.
23. The facts make it clear that it is not the entire ACRs of the applicants, which are to be written by the members of the IAS, rather it is only on three aspects, such as reputation for honesty, dealing with the public and over all personality and efficiency in the matter of maintenance of law and order and also for maintaining and promoting communal harmony and curbing/handling communal tension. The reason as to way these aspects have been brought within the purview of the District Magistrate/Deputy Commissioner, is not too far to seek. The detailed working of the District Magistrate and Superintendent of Police, explained above, would go to indicate that District Magistrate is the head of the criminal administration of the district and the police force is the instrument provided by Government to enable him to enforce his authority and fulfill his responsibility of maintenance of law and order. The police force in a district is, therefore, placed by law under the general control and direction of the District Magistrate, who is responsible that it carries out its duties in such a manner that effective protection, is afforded to the public against lawlessness and disorder. We fail to understand as to, if the District Magistrate under whose control the Superintendent of Police has to act to maintain the law and order, is not to write his ACR in regard to those three aspects only, then who else will write ACRs. Obviously, their senior in the hierarchy, will not have any control over their working in regard to these three spheres.
24. Thus, we are of the considered view that the authorities have made the provision for writing of ACRs of Superintendent of Police, by D.M.or D.C., keeping a specific objective in mind and not without application of mind. There has been a proper thinking on the issue and we have no doubt in our mind that the system evolved by Annexure R-1, is to achieve a specific objective and as such the same does not need our interference. Moreover, impugned order Annexure A-1 dated 22.5.1996 issued by State of Haryana, is offshoot of statutory Rules, Annexure R-1 Annexure R-1, while exercising the powers vested under Annexure R-1, clearly provides that the Accepting Authority" "Reporting Authority" and Reviewing Authority" will be persons/authorities, empowered in this behalf by the Government. In this case, the Government i.e. State of Haryana, has issued instructions at Annexure A-1, that it is the District Magistrate/Deputy Commissioner, who shall record ACR of Superintendent of Police, in regard to three aspects, mentioned above. This is definitely a policy decision which appears to be just and reasonable and has a nexus with the object sought to be achieved. This Tribunal would not like to entrench upon area of policy making which is exclusively within the purview of the appropriate Government. We do not find that the decision is arbitrary or is in violation of Article 14 or 16 of the Constitution of India and as such it deserves to be upheld and the same is upheld.25. The whole case of the applicants revolves around and is dependent upon the observations of the Hon'ble Supreme Court, in the two cases quoted and discussed above, i.e. P.C. Wadhawa (supra) and T.N.Godavarman Thirumulkapad (supra). As explained above the view expressed by the Hon'ble Supreme Court in T.N. Godavarman Thirumulkapad (supra), was as fallowed up of view taken in the case of P.C. Wadhawa (supra), which in turn was based upon unamended Rule 2 of Rules of 1970. In view of the fact that relevant provisions of Rule 2 of Rules of 1970, have been changed by notification, Annexure R-1, those two decisions of the Hon'ble Apex Court, would not apply to this case, as amended rules at Annexure R-1 dated 8.12.1987 were not in existence at the time when P.C. Wadhawa's case was decided on 5th April, 1987. These amended rules, were not even brought to the notice of Hon'ble Apex Court in T.N. Godavarman's case. We also find that the various averments made by the respondents in their written statement has gone un-rebutted inasmuch as applicants chose not to file any replication and as such we have no hesitation in accepting the view point of the respondents, more so, when they have not only rebutted the averments made in the O.A. but have raised certain vital points in their written statements, which should have been met by the applicants by filing counter. In view of the above discussion, we find no reason to interfere in the impugned order Annexure-A1, dated 22.5.1996, which is found to have been issued by State of Haryana under the powers vested in it under Amended Rules of 1970. Therefore, for the foregoing reasons, this O.A. turns out to be devoid of any merit and is dismissed, leaving the parties to bear their own costs.