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Judgment
Satyen Vaidya, J
By way of instant petition, the petitioner has prayed for following substantive reliefs:-
“(i) That the impugned orders dated 01.07.2014 whereby the representation filed by the applicant against the penalty order dated 01.06.2012 of reduction in rank/demotion of lower post and suspension period w.e.f. 02.12.2010 to 01.06.2012 has been treated as dies non was rejected on the ground that there is no provision for second appeal may kindly be quashed and set aside in the interest of justice.
(ii) The respondent may further be directed to drop of the disciplinary proceedings against the applicant and further applicant be exonerated from charges levelled against him and the applicant may be held entitled for all consequential benefits incidental thereof such as back wages, seniority and pay fixation with interest.
(iii) That the enti e ecord of the case may be summoned for the kind perusal of this Hon’ble Tribunal.
(iv) The c st of this Original Application may be all wed in favour of the applicant.”
During pendency of the petition, certain new developments relevant for adjudication of the issues have taken place, which have been brought on record by way of supplementary affidavit dated 15.09.2024 filed by the petitioner and additional prayer has been made to quash and set aside the communication dated 4.9.2024, Annexure S-9, and to issue direction to respondents to include the name of petitioner in List D-1 with all consequential benefits.
Petitioner while being posted as Head Constable was indicted in a disciplinary inquiry and consequently the disciplinary authority inflicted punishment of reversion to the post of Constable from Head Constable The suspension of the petitioner from 02.12.2010 to 01.06.2012 was ordered as dies non.
Petitioner filed service appeal but remain unsuccessful. His revision before Director General of Police was also dismissed. Thereafter, the petitioner submitted a representation to Principal Secretary (Home) to the Government f Himachal Pradesh, which was rejected on 1.07.2014 with observations that under Section 19 of the H.P. Police Act, there was no provision for second appeal. Hence the instant petition.
On 01.11.2022, this Court passed the following order:-
“Learned counsel for the petitioner submits that perusal of the order passed by the disciplinary authority dated 1.6.2012 would demonstrate that the penalty, which was imposed upon the petitioner was that he was reduced in rank from the post of Head Constable to the post of Constable. He further submits that after reduction of the rank of the petitioner in terms of order dated 1.6.2012, he still is serving against the said post only and no further promotion has been granted to him to the post of Head Constable and the petitioner will be satisfied in case he is granted promotion to the post of Head Constable, as was due to him by construing him to be holding the post of Constable w.e.f. 1.6.2012.
Learned Additional Advocate General submits that the case be taken up after two weeks, so that he can have the instructions in the matter. O de ed accordingly. List after two weeks, as prayed for.”
Pursuant to aforesaid order passed by this Court, the 2nd resp ndent directed the 3rd respondent to re-examine the case of the petitioner and to take appropriate action by passing the revised punishment order in terms of Punjab Police Rule 16.4 and Rule 29(2) of FRSR. It was observed by the 2nd respondent that the punishment order dated 01.06.2012 passed by the disciplinary authority was incorrect to the extent that the same did not specify the duration of penalty period.
The 3rd respondent issued office corrigendum dated 30.12.2022.The punishment order dated 01.06.2012 was amended and the duration of punishment awarded to the petitioner was held to be for a period five years w.e.f. 01.06.2012. It was ordered that the petitioner would automatically restore to his rank after expiry of specified period and the financial benefits would be admissible from the date of issuance of the order. The petitioner was allotted H.C. No. 57.
The petitioner filed revision petition before the 2nd respondent and the said espondent vide order dated 07.02.2024 held the corrigendum dated 01.06.2022 issued by 3rd respondent to be lacking in clarity. Resultantly, the 3rd respondent ordered as under:-
“(i) Reduction in rank of the petitioner will remain in effect for five years i.e. 01.06.2012 to 01.06.2017.
(ii) From 2017 onwards, petitioner is eligible for promotion as per the turn and consequential financial benefits.
(iii) Substance allowance as applicable as per rules may be given to the petitioner.
(iv) Suspension has already been revoked.
(v) We have given the petitioner relief as per the rules.”
In compliance to order dated 07.02.2024 passed by the 2nd respondent, the consequential order was passed by the 3rd respondent on 24.04.2024.
Petitioner along with other Head Constables were recommended for nomination for Intermediate School Course scheduled to start at Police Training College Droh w.e.f. 19.02.2024.
Petitioner qualified he Intermediate School Course and became eligible for inclusion in List-D for promotion to the post of Assistant Sub Inspector.
On 04.09.2024, a list, of Head Constables, who were lien holders of Districts of Southern Range and had qualified Intermediate School Course, was approved for their placement in list D-1 w.e.f. 22.08.2024. The name of petitioner was not included purportedly for the reason that he was not senior enough.
In response to the clarification sought by the 3rd respondent from 2nd respondent with respect to the seniority of petitioner on his restoration on the post of Head Constable, 2nd respondent vide communication dated 04.09.2024 advised as under:-
“2. In this regard, it is advised that the seniority of HC Chander Pall will be counted for the purpose of next promotion from the date he had completed the currency period i.e. reduction of rank from the period of five years as award by the competent authority.”
Petitioner is now aggrieved against the communication dated 04.09.2024 issued by the 3rd respondent and by way of supplementary affidavit has sought its quashing.
Petiti ner is claiming seniority of Head Constable from the date when he was promoted on the said rank by alleging that the 2nd respondent did not have any aut ority to advise respondent No.3 as has been done vide communication dated 04.09.2024. It is alleged that vide Para 13.5.5 of the instruction in Handbook on Personnel Matter Vol. I (Edition 2021), it has been provided that where reduction of rank is for specified period and does not operate to postpone future increments, the seniority of the government servant may, unless the terms of order of punishment provide otherwise, be fixed in the higher service, grade or post or the higher time-scale at what it would have been but for his reduction. As per the petitioner his case is clearly covered by the aforesaid instructions. It is further alleged that by way of issuance of communication dated 04.09.2024, the 2nd respondent has re-written the penalty order by adding something which was not there, such an approach has been alleged to be impermissible in law.
The respondents have filed reply to the supplementary affidavit. The factual position has not been denied. It is contended that the name of petitioner will be considered for promotion to the next higher rank on the basis of seniority w.e.f. 01.06.2017 as per his turn with those Head Constables who have qualified the Lower School Course in the 20th batch in term ending September, 2016.
As per the respondents, the 3rd respondent had sought clarification of the order dated 07.02.2024 passed by the 2nd respondent on revision petition of the petitioner. The 3rd respondent was informed by the 2nd respondent that his order dated 07.02.2024 was self-explanatory and the 3rd respondent was directed to proceed accordingly Thereafter, the 3rd respondent again sought clarification vide letter dated 05.06.2024 informing that the seniority of the petitioner had been fixed vide order dated 02.01.2024 keeping in view the provisions laid down in instructions 13.5.5 of the Handbook of Personnel Matter Vol. I, Edition-2021 for the reasons that though the petitioner was reverted to the rank of constable for five years but his future increments were not postponed, rather he was granted increments regularly and thus he had been given benefit of original seniority in the higher service or post or the hi her time-scale w.e.f. 03.10.2006 i.e. date of his promotion to the rank of Head Constable. In response the advice dated 4.9.2024, now impugned by the petitioner, was issued.
The contents of reply filed by respondent to supplementary affidavit of petitioner reveal that the 3rd respondent had fixed the seniority of petitioner vide order dated 2.1.2024 as per instruction 13.5.5 of Handbook on Personnel matters Vol. I (2021 Edition) on the basis of advice rendered by Deputy Controller Finance and accounts vide his letter dated 16.11.2023.
Instructions 13.5.5 of the andbook of Personnel Matter, Vol. I, Edition-2021 reads as under:
“Where reduction of rank is f r specified period and does not operate to postpone future increments, the seniority of the government servant may, unless the terms of order of punishment provide otherwise, be fixed in the higher service, grade or post or the higher time-scale at what it would have been b t for his reduction.”
The plain reading of above noted instructions signifies that unless the punishment order specifies otherwise, the seniority of the incumbent whose rank was reduced for specified period with no order to postpone future increments will not be an impediment in fixing his seniority in higher service, grade or post or the higher time-scale at what it would have been but for his reduction.
Indisputably, the final punishment order as has merged with revisional order dated 7.2.2024 has attained finality. The period of reduction of rank was five years w.e.f. 1.6.2012 to 31.5.2017. To be more precise the operative part of revisional order dated 7.2.2024 passed by 3rd respondent was as under:
“(i) Reduction in rank of the petitioner will remain in effect for five years i.e. 01.06.2012 to 01.06.2017.
(ii) From 2017 onwards, petitioner is eligible for prom ti n as per the turn and consequen ial financial benefits.
(iii) Substance allowance as applicable as per rules may be given to the petitioner.
(iv) Suspension has already been revoked.
(v) We have given the petitioner relief as per the rules.”
Thus, it is the admitted position that the punis ment order did not postpone the future increments n any manner. The order dated 7.2.2024 of the 3rd respondent also did not prescribe any impediment in considering the seniority of petitioner in terms of instruction 13.5.5 of the Handbook on Personnel Matters Vol-I. Thus, on facts there is no hesitation to say that instruction 13.5.5 of the Handbook on Personnel Matters Vol-I will apply in the case of petitioner on all the fore. The condition number (ii) of order dated 7.2.2024, as noticed above, can also not be read to be in derogation of instruction 13.5.5 (supra).
As per the stand now taken by respondents they have given precedence to provisions of Rule 29(2) of Fundamental Rules and Section 87 f the H.P. Police Act, 2007.
FR 29(2) reads as under:
F.R. 29.
(2) If a G vernment servant is reduced as a measure of penalty to a lower service, grade or post or to a lower time-scale, the authority ordering the reduction shall specify: —
(a) the period for which the reduction shall he effective;
(b) whether, on restoration, the period of reduction shall operate to postpone future increments and, if so, to what extent; and
(c) whether the Government servant shall regain his original seniority in the higher service, grade or post or time-scale on his restoration to the service, grade or post or time-scale from which he was reduced.
The above provision deals only with requirements to be incorporated in punishment order prescribing reduction in rank.
In the facts of the case in hand, the period of reduction in rank of petitioner was specified. The absence of specific direction to postpone the future increment implies that no such condition was imposed As regards the seniority the revisional order dated 7.2.2024 explicitly provided as under:
“From 2017 onwards, petiti ner is eligible for promotion as per the turn and consequential financial benefits.”
In the above factual background, the impugned advice dated 4.9.2024 amounts to re-writing the punishment order which is impermissible in law. Once the respondents had accepted the order dated 7.2.2024, not ing more could be added or subtracted from it.
Section 87 of the H.P. Police Act only deals with general provisions relating breaches of discipline and disciplinary misconduct by a Police Officer. It no where directly deals with the procedural aspects as are in issue herein.
Thus, there is no antithesis between instruction 13.5.5 (supra) and FR 29(2). Both are meant to supplement each other and in appropriate cases to be used harmoniously.
In light of above discussion, the petition is allowed. Communication Annexure S-9 dated 4 9 2024 is quashed and set aside. The respondents are directed to consider the case of petitioner under instruction 13.5.5 of Handbook on Personnel Matters V l. I (2021 Edition) for fixation of seniority and to include the petitioner in D-1 list, with all consequential benefits.
Petition is accordingly disposed of, so also the miscellaneous pending application(s), if any.