# VINOD KUMAR v. STATE OF HARYANA & ORS

- **Citation:** [2013] 11 S.C.R. 471
- **Court:** Supreme Court of India
- **Decided:** 2013-10-24
- **Case number:** Civil Appeal No. 392 of 2008
- **Bench:** Sudhansu Jyoti Mukhopadhaya, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vinod-kumar-v-state-of-haryana-ors-28693
- **Pages:** 42

## Headnote

Service Law:
A
B
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
F
G
H
- 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.
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.
The present Appeals/Petitions are categorized in
three groups on factual basis.
First Group
In the first group of cases, adverse entries were made
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 li

## Text

_Characters 0–39,815 of 76,125. This is a partial read: ask again with offset=39815 for what follows._

[2013] 11 S.C.R. 471
VINOD KUMAR
v.
STATE OF HARYANA & ORS.
(Civil Appeal No. 392 of 2008)
'
:/
OCTOBER 24, 2013
[SUDHANSU JYOTI MUKHOPADHAYA AND
A.K. SIKRI, JJ.]
Service Law:
A
B
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
F
G
H
- 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.
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.
The present Appeals/Petitions are categorized in
three groups on factual basis.
First Group
In the first group of cases, adverse entries were made
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
E
F
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
HELD:
1st Group Cases:
C.A. No. 392 of 2008:
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 nonexistent 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]
Roberts vs. Hopwood; 1925 All E.R. 24 - referred to.
F
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.
c
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]
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
0 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 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
F
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
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] (511B-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
F
G
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]
Case Law Reference:
1925 All E.R. 24
1975 (2) SCR 96
1990 (1) SCR 909
referred to
relied on
relied on
Para 17
Para 18
Para 18
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
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.
A
B
P.S. Patwalia, Manjit Singh, Addi. Adv. S. Ranjit Kumar,
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
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.
G
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:-
F
G
H
"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
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
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
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
earlier should be reconstructed, after issuing show-cause
notice to these officials. Vide these Instructions, the DGP
ordered a review of all such cases.
E
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 reopen 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 reconsideration. 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,
B
c
D
E
F
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
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
authority.
OR
If the lowest competent authority is the Government
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
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
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
B
on the subject but it also creates unnecessary complications/
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
that a representation was permitted to an employee in addition
F
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:
c
D
E
"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
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
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."
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:
G
H
"16.28.
Powers to review proceedings.-
(1)
The Inspector-General, a Deputy InspectorGeneral, and a superintendent of Police may call
for the records of awards made by their
subordinates and confirm, enhance, modify or annul
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
(3)
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.
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
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
E
F
no application for the revision of an order by the
Inspector-General will be entertained. An officer
whose appeal has been heard by the InspectorGeneral may, however, submit to the InspectorGeneral 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 InspectorD
E
F
G
H
General on or before 15th April.
Deputy Inspectors-General and Assistant InspectorGeneral, Government Railway Police, will add their
own remarks and retain reports on Assistant SubInspectors and Sub-Inspectors who are not on list
'F' and Sergeants will be forwarded by Deputy
lnspectors-Gen~ral and Assistant InspectorGeneral, 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
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
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).
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.-
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
temperate manner through the proper channel."
16. Thus, these Rules only pertain to recording of ACRs.
E
F
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
[A.K. SIKRI, J.]
24 laying down the law in the following terms:
493
" .... 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
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 ..... "
A
B
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.