No.4752 of 2015 and held Rule 63(iii) of the Assam Police Manual invalid on the ground that it is in direct conflict with Section 14(2) of the Assam Police Act, 2007.
The Inspector General of Police shall refer the report to the Deputy Inspector General of Police, S.B., for recording his remarks regarding performance of the Superintendent of Police of the District in subjects pertaining to the S.B.’ 2 Section 14 of the Act of 2007 reads thus: ‘14. (2) The Deputy Commissioner as District ( sic.) Magistrate has however, no authority to interfere in the internal organization and discipline of the Police force, but it is his duty to bring to the notice of the Superintendent of Police, all cases in which the conduct of and qualification of Police Officer affect the general administration of a district.’ As IPS Officers belong to an ‘All India Service’, it would be pertinent to note the provisions of the All India Services (Confidential Rolls) Rules, 1970 (for brevity, ‘the 1970 Rules’), which were thereafter replaced by the All India Services (Performance Appraisal Report) Rules, 2007 (for brevity, ‘the 2007 Rules’), in the context of the mode and method of preparation of ACRs/APARs of IPS Officers in the rank of SPs. These Rules read as under: – 3 ‘2(e) ‘reporting authority’ means the 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; 2(f) ‘reviewing authority’ means authority or authorities supervising the performance of the reporting authority as may be specifically empowered in this behalf by the Government; 2(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.’ Rule 2(e) above was thereafter amended, vide Notification No.
These Rules read as under: – ‘2(j) ‘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.
As per Rule 63(iii) of the Manual, the ACR/APAR of a SP should be initiated by the Deputy Commissioner concerned and the same would be reviewed by the Deputy Inspector General of Police in charge of the Range and then sent to the Commissioner of the Division. Reliance is placed upon the 2007 Rules and the 1987 amendment of Rule 2(e) of the 1970 Rules, to contend that it is not necessary that a ‘Reporting Authority’ should be the immediate superior of the member of the service whose ACR/APAR is being prepared and it is sufficient if the authority supervises his/her performance. On the other hand, the respondents would point out that Section 14(2) of the Act of 2007 makes it clear that the Deputy Commissioner cannot interfere with the internal organization or discipline within the police force in the district and can only inform the SP if the conduct and/or 6 qualification of a police officer affects the general administration of the district.
Presently, Section 14(1) of the Act 7 of 2007 provides that the administration of the police within the district vests in the SP of that district and Section 14(2) of the Act of 2007 makes it clear that the Deputy Commissioner would not have the power to interfere with the internal organization of the police in the district or with discipline within the police force. This distinction, which was brought about in the administration of the police, must necessarily be kept in mind while considering the validity of the procedure prescribed under Rule 63(iii) of the Manual. Therefore, merely because they are deployed/deputed to work in the State of Assam, IPS Officers cannot be denied the benefit of the 2007 Rules which would be applicable across the board to their ilk serving all over the country.
Further, it is argued that, thereunder, the Government has been vested with the discretion of empowering any of the supervising authorities as the ‘Reporting Authority’ 9 and the same would fall in the realm of policy-making.
Be it noted that the 1970 Rules 10 and the 2007 Rules both define ‘Reviewing Authority’ to mean the authority or authorities supervising the performance of the ‘Reporting Authority’, as may be specifically empowered in this behalf by the Government. The definition of ‘Reporting Authority’ in the 1970 Rules, post 1987, and in the 2007 Rules, did away with the mandate of having the ‘immediate superior’ of the officer reported upon undertaking that exercise but it still requires the ‘Reporting Authority’ to be someone who supervises the performance of the said officer.
The learned Attorney General would suggest that this definition be given a restricted meaning to the effect that the ‘Reviewing Authority’, i.e., the Deputy Inspector General of Police, would supervise the performance of the ‘Reporting Authority’, viz., the Deputy Commissioner, only to the extent of how he/she assessed the performance of the SP and no more.
Further, reading down the meaning of the definition would have unintended consequences, fully divorced from the unambiguous words used therein, whereby ‘Reviewing Authority’ is defined to mean that such an authority must be one who supervises the performance of the ‘Reporting Authority’ in all respects and not in relation to one function alone. Section 14(1) of the Act of 2007 states that administration of the police within the local jurisdiction of the Deputy Commissioner is vested in the SP, under the general control and direction of such Deputy Commissioner, but Section 14(2) makes it clear that the Deputy Commissioner has no 13 authority to interfere with the internal organization and discipline of the police force. On a plain reading, Section 14(1) and Section 14(2) of the Act of 2007 appear to be in derogation of each other, inasmuch as Section 14(1)
vests the Deputy Commissioner with control over the SP but Section 14(2) makes it clear that such control would not extend to the Deputy Commissioner interfering with the internal organization or harmonious discipline within the police force in the district.
Further, when liberty has been given to the SP to disagree with the Deputy Commissioner on any point relating to police administration and seek resolution of such difference of opinion through the Commissioner and, thereafter, the Inspector General of Police, it would be a parody to subject the performance assessment of such a SP to the same Deputy Commissioner with whom he/she had disagreed. Significantly, Circular No 11059/4/89-AIS.III, dated 28.12.1990, issued by the Government of India in exercise of power under Rules 3 and 10A of the 1970 Rules, stipulated that the ‘Reporting Authority’ should be in a higher grade of pay than the officer reported upon. In this regard, we may also note that, in State Bank of India and others vs Kashinath Kher and others, this Court held that officers reporting upon performance must show objectivity, impartiality and fair assessment, without any prejudices whatsoever, and the highest sense of responsibility so as to inculcate devotion to duty, honesty and integrity.
Earlier, in State of Haryana vs P.C.Wadhwa, IPS, Inspector General of Police and another, this Court considered whether the State Government could empower any authority to be the ‘Reporting Authority’ of the Inspector General of Police under Rule 2(e) of the 1970 Rules. The above analysis and given the fact that the 1970 Rules/2007 Rules define reporting, reviewing and accepting authorities to mean that they must all be from the same service or department, intervention by the Deputy Commissioner during the exercise of performance assessment of SPs of the districts in the State of Assam, by virtue of Rule 63(iii) of the Manual, cannot be countenanced, being in direct conflict therewith, and would tantamount to permitting the Deputy Commissioner to interfere with the internal organization of the police force, which would be contrary to the mandate of Section 14(2) of the Act of 2007.
Other pending applications, if any, shall stand closed.
Case Title: THE STATE OF ASSAM Vs. BINOD KUMAR (2024 INSC 44)
Case Number: C.A. No.-001933-001933 / 2023
