The State Of Assam vs Binod Kumar

2024 INSC 44 Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1933 OF 2023

The State of Assam and others … Appellants

Versus

Binod Kumar and others … Respondents

JUDGMENT

SANJAY KUMAR, J

1. By judgment dated 05.12.2017, the Gauhati High Court allowed

W.P(C). 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. This judgment is called in question by the State of

Assam and its officials in the Home Department.

2. While ordering notice on 07.01.2019, this Court directed that no

coercive steps should be taken against the appellants on the basis of the

impugned judgment. On 21.03.2023, this Court issued notice to the learned Signature Not Verified Digitally signed by SNEHA DAS Date: 2024.01.18

Attorney General for India, being of the opinion that his presence was 16:54:24 IST Reason:

necessary for effective adjudication of this appeal.

1 3. The core controversy in this case is as to who should be the

‘Reporting Authority’ to initiate Annual Confidential Reports (ACRs)/Annual

Performance Appraisal Reports (APARs) of Indian Police Service (IPS)

Officers working as District Superintendents of Police (SPs) in the State of

Assam. More particularly, the issue is whether Rule 63(iii) of the Assam

Police Manual (for brevity, ‘the Manual’), which prescribes that such

assessment should be initiated by the Deputy Commissioner concerned, as

the ‘Reporting Authority’, is lawful. The specific ground successfully urged

before the High Court by the respondents herein, viz., IPS Officers working

as SPs in the State of Assam, is that this Rule is violative of Section 14(2)

of the Assam Police Act, 2007, (for brevity, ‘the Act of 2007’).

4. It would be apposite at this stage to note the tone and tenor of the

relevant statutory provisions. Rule 63(iii) of the Manual, in the context of

initiation of the ACR/APAR of a SP of a district, reads as follows:

‘(iii) Superintendent of Police - the report should be initiated by Deputy Commissioner, reviewed by the Deputy Inspector General of Police i/c Range and sent to the Commissioner of Division. The Commissioner of Division will send the same with his opinion to the Inspector General of Police for acceptance.

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. Relationship of Superintendent of Police with District Magistrates -

(1) The administration of the Police throughout the local jurisdiction of the Magistrate is vested in the Superintendent of Police under the general control and direction of the Deputy Commissioner as District Magistrate. The latter is responsible for keeping peace and maintenance of law and order in a district and may employ the police as he thinks best for the purpose.

(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.’

5. 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. Rules 2(e),

2(f) and 2(a) of the 1970 Rules defined ‘Reporting Authority’, ‘Reviewing

Authority’ and ‘Accepting Authority’ respectively, apropos preparation of

ACRs/APARs. These Rules read as under: -

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‘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.

22012/4/87-AIS-III dated 08.12.1987, and from that date it read thus: -

‘2(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.’

6. The 1970 Rules continued to govern the field till the advent of the

2007 Rules. Rules 2(j), 2(k) and 2(a) of the 2007 Rules define ‘Reporting

Authority’, ‘Reviewing Authority’ and ‘Accepting Authority’ respectively.

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.

2(k) ‘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.

4 2(a) ‘accepting authority’ means the authority which supervises the performance of the reviewing authority as may be specifically empowered in this behalf by the Government.’

7. Hitherto, the Police Act, 1861, was applicable in the State of

Assam and the Assam Police Manual originated from it. However, upon the

Act of 2007 being brought into force, the Police Act, 1861, was repealed in

so far as its application to the State of Assam was concerned. The question

presently is whether Rule 63(iii) of the Manual, which dates back to a point

of time when the Police Act, 1861, was in force, can be said to be still valid

and lawful in the framework of the Act of 2007 and the 2007 Rules relating

to preparation of ACRs/APARs of IPS Officers in the rank of SPs.

8. 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. The

Commissioner would then send the same with his opinion to the Inspector

General of Police for acceptance who, in turn, would refer the report to the

Deputy Inspector General of Police (Special Branch) for his remarks on the

SP’s performance in subjects pertaining to that Branch.

9. It is the contention of the appellants that a government servant has

no right, much less a legal right, to insist that his/her ACR/APAR ought to 5 be initiated by a particular ‘Reporting Authority’. It is argued that there is no

inconsistency in Rule 63(iii) when compared with the scheme of the Act of

2007 and the 1970 Rules/2007 Rules. 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. It is

contended that, as Section 14(1) of the Act of 2007 vests the Deputy

Commissioner/District Magistrate (hereinafter referred to as, ‘the Deputy

Commissioner) with control over the functioning of the SP of that district,

the Deputy Commissioner would be the most suitable person to report

upon the performance of that SP. The appellants would point out that the

SP works under the control and direction of the Deputy Commissioner, who

has the overall responsibility of keeping peace and maintaining law and

order in the district and who is empowered to employ the police force within

the district as he/she thinks best for that purpose.

10. 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. They contend that the archaic Rule 63(iii) of the Manual is not

compatible with the scheme obtaining under the Act of 2007 and the 2007

Rules and that the Gauhati High Court was well justified in holding to that

effect and invalidating it.

11. At the outset, we may note that the system of governance

obtaining under the Police Act, 1861, was altogether different from what it is

now. At that time, the Deputy Commissioner exercised far wider powers,

being the head of the criminal and police administration in the district. In

such circumstances, it was proper that he/she should be vested with the

power of assessing the performance of the SP of that district. Rule 63 of

the Manual also makes this clear as it speaks of the recording officers

being fully conversant with the quality of the work of the ‘officers working

under them’ and goes on to say that the intention is that the work of an

officer should be known to all his ‘superiors’ along the line. The hierarchical

superiority of the Deputy Commissioner over the SP in that setup is,

therefore, clear.

12. However, after the separation of powers in terms of the regime

now prevailing, the Deputy Commissioner is no longer the head of criminal

and police administration in 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. Notably, Rule 25(c) of the Manual empowered the

Deputy Commissioner to order an enquiry in case of misconduct by a

police officer, in direct variance with Section 14(2) of the Act of 2007 which

unequivocally divests the Deputy Commissioner of such disciplinary power.

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. As pointed out by

Sir Rupert Cross in his ‘Statutory Interpretation (3rd Edition, 1995), a

statutory provision has to be considered first and foremost as a norm of the

current legal system whence it takes force, as it has a legal existence

independent of the historical contingencies of its promulgation and should

be interpreted in the light of its place within the system of legal norms

currently in force. These observations were quoted with approval by this

Court in Dharani Sugars and Chemicals Limited vs. Union of India and

others1.

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(2019) 5 SCC 480

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13. That apart, one must also keep in mind that IPS Officers, being

members of an All India Service, would be amenable to the 2007 Rules.

Section 65 of the Act of 2007 makes it clear that police personnel in the

State of Assam shall be governed by the existing Discipline and Appeal

Rules and other Service Conduct Rules in force, as applicable to the Indian

Police Service, State Police Service and others serving in the State Police

Establishment. 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. It would, therefore, be incorrect to castigate such IPS

Officers as insisting upon a ‘Reporting Authority’ of their choice. They are

merely seeking parity with their kind working in other parts of the country. It

is in this context that the extant 2007 Rules would have a direct impact on

the issue under consideration.

14. The sheet anchor of the appellants’ case is the that the definition

of “Reporting Authority’ in the 1970 Rules, post the 1987 amendment, and

in the 2007 Rules does not require such authority to be ‘immediately

superior’ to the officer being reported upon. 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. Trite to state, such

discretion must be exercised judiciously and the resultant policy must

necessarily fall within the four corners of the statutory scheme. The further

argument that, as the designated reviewing and accepting authorities are

senior officers in the police hierarchy, it would not make a difference if the

‘Reporting Authority’ is not from that department, needs mention only to be

rejected. Each cog in the assessment process has its own role to play and

this is clearly spelt out by Rule 63 of the Manual itself, which stipulates that

inability or failure to report properly and objectively would be construed as a

failure of the recording/reviewing officer and commented upon as such by

the next level. On the same lines, Instruction 5 of the Instructions appended

to Form I in the 1970 Rules, titled ‘Confidential Report for Indian Police

Service Officers’, stipulates that if the ‘Reviewing Authority’ finds that the

‘Reporting Authority’ made the report without due care and attention, he

shall record a remark to that effect and the same shall be entered in his

Confidential Roll.

15. Significantly, though a ‘Reporting Authority’, as defined, is required

to be someone who supervises the performance of the officer reported

upon and not necessarily his/her immediate superior, there was no change

in the definition of ‘Reviewing Authority’. 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. It is in the

backdrop of this definition of ‘Reviewing Authority’, that Rule 63(iii) of the

Manual needs to be examined. Notably, a Deputy Commissioner, being the

‘Reporting Authority’ thereunder, would be altogether independent of the

police department, being either an IAS Officer or a State Civil Service

Officer. Needles to state, performance of a Deputy Commissioner would

not be assessed by the Deputy Inspector General of Police, the designated

‘Reviewing Authority’ under Rule 63(iii), but by his/her own superior in the

Administrative Service. There is, thus, a clear departure from the 1970

Rules/2007 Rules.

16. 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. Ordinarily, such supervision would be

by an officer from within the same department, who is higher in rank than

the officer reported upon. The Government was, no doubt, given discretion

to empower any of the authorities who supervise the performance of the

11 officer reported upon to assume such role. This discretion, however, cannot

be construed to mean that someone from outside the department can be

given such power, in the light of the ‘Reviewing Authority’ being defined as

someone who supervises the performance of such ‘Reporting Authority’.

This clearly implies that both authorities must belong to the same service or

department. In effect, Rule 63(iii) of the Manual does not fit in with the

scheme obtaining under the 1970 Rules and the 2007 Rules.

17. 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.

However, we are of the opinion that such a construction does not flow from

the plain language of the definition and would require something more to be

read into it than was intended. Reference may be made to Kanai Lal Sur

vs. Paramnidhi Sadhukhan2, wherein this Court observed that the words

used in a statute must be interpreted in their plain grammatical meaning

and it is only when they are capable of two constructions that the question

of giving effect to the policy or object of the legislation can legitimately

arise.

2

AIR 1957 SC 907

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18. 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.

19. Pertinently, there is no discernible conflict or contradiction between

the definitions of ‘Reporting Authority’ and ‘Reviewing Authority’ in the 1970

Rules, post 1987, and in the 2007 Rules. The clear import of these

definitions is that such authorities must be from within the same service or

department. Invocation of the doctrine of harmonious construction vis-à-vis

these definitions, therefore, does not arise. Given the clear intent of the

1970 Rules/2007 Rules that the reporting, reviewing and accepting

authorities should be from within the same service or department, the

question is whether breach of such requirement can be permitted in the

State of Assam under Rule 63(iii) of the Manual.

20. In this milieu, Section 14(2) of the Act of 2007 assumes relevance.

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. This sub-section further states that it would be within the

power and duty of the Deputy Commissioner to bring to the notice of the

SP all such cases in which the conduct of and/or qualification of a police

officer affects the general administration within the district and no more. 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 discipline within the police force

in the district. These provisions must be harmoniously construed by

restricting the power vesting in the Deputy Commissioner under Section

14(1), by duly carving out what has been excepted under Section 14(2).

Such harmonious construction would be necessary to give effect to both

provisions, so that they operate without conflict and a head-on collision

(See S. Gopal Reddy vs. State of A.P.3 and Sultana Begum vs. Prem

Chand Jain4).

21. We may note that even as per the Manual, a SP is not made

subservient to a Deputy Commissioner. Rule 25 of the Manual

3 (1996) 4 SCC 596 4 (1997) 1 SCC 373

14 demonstrates this. It provides that though the SP is required to obey the

instructions of the Deputy Commissioner in the first instance, the SP can

thereafter request the Deputy Commissioner to refer any difference of

opinion between them on any question relating to police administration to

the Commissioner, who would decide such reference. Moreover, the SP is

at liberty to submit his case to the Inspector General of Police if he is

dissatisfied with the decision of the Commissioner. It is, thus, clear that a

SP is required to work under the ‘general control and direction’ of a Deputy

Commissioner and obey his/her instructions but that does not place the SP

under the hierarchical supremacy of that Deputy Commissioner.

22. 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. Such an ACR/APAR

cannot be taken to be impartial and objective, once it is preceded by a

difference of opinion between the SP and the Deputy Commissioner,

leading to a reference being made to higher authorities. Such a situation

must necessarily be avoided to maintain the sanctity of the assessment

15 process. This constitutes one more reason why the Deputy Commissioner

should not be the ‘Reporting Authority’ of the SP of that district.

23. 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. The Government

noted that there were instances where the ACRs of the members of All

India Services were initiated by officers belonging to the same batch or

drawing the same pay scale as the officer reported upon and instructed that

the State Governments must ensure that a member of the service does not

initiate the Confidential Report of another member of the service in the

same grade of pay. It is, therefore, clear that the ‘Reporting Authority’ must

necessarily be in a higher grade of pay than the officer who is being

reported upon. It may be noticed that Rule 11 of the 2007 Rules empowers

the Central Government to issue instructions with regard to the writing of

the Performance Appraisal Report. However, no new instruction or circular

has been issued in exercise of power thereunder, contrary to the earlier

Circular dated 28.12.1990. However, instances have been cited by the

respondents where ACRs/APARs of the SPs in the State of Assam were

initiated by Deputy Commissioners who were not in a higher grade of pay.

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24. In this regard, we may also note that, in State Bank of India and

others vs. Kashinath Kher and others 5, 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. It

was further observed that as officers may get demoralized by negative

ACRs, which would be deleterious to the efficacy and efficiency of public

service, such ACRs should be written by a superior officer of high rank. Earlier, in State of Haryana vs. P.C.Wadhwa, IPS, Inspector General of

Police and another6, 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. It was observed that,

from the point of view of propriety and reasonableness and having regard

to the intention behind the Rule, which is manifest, such an authority must

be one superior in rank to the member of the service concerned. No doubt,

these observations were made in the context of the unamended Rule 2(e)

of the 1970 Rules, but the principle culled out is sound and still holds good.

25. The appellants would argue that the Deputy Commissioner is the

most suitable person to assess the performance of the SP, as he works

5 (1996) 8 SCC 762 6 (1987) 2 SCC 602

17 under his control and direction, but we are not impressed. Form I in

Appendix II to the 2007 Rules pertains to performance appraisal of all IPS

Officers upto the level of Inspector General of Police, which would include

SPs. Clause 6 in Rule 3 thereof, relating to appraisal by the ‘Reporting

Authority’, provides various domain assignments wherefrom the ‘Reporting

Authority’ is required to select any four. ‘Law and Order’ is only one of the

twenty named domains, which would come within the purview of the

Deputy Commissioner and the remaining nineteen would not be within

his/her purview and supervision. Seized of only one of the twenty domains,

the Deputy Commissioner would not even be competent to assess the

overall performance of the SP.

26. On 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.

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27. We, therefore, find no grounds to disagree with the conclusion

arrived at by the Gauhati High Court, holding to that effect.

The appeal is, therefore, devoid of merit and is accordingly

dismissed.

Applications for permission to file additional documents are

allowed. Other pending applications, if any, shall stand closed.

Before parting with the case, we place on record our

appreciation and gratitude to Mr. R. Venkataramani, learned Attorney

General, for his erudite and able assistance.

Parties shall bear their own costs.

………………………..,J (ANIRUDDHA BOSE)

………………………..,J (SANJAY KUMAR) January 18, 2024.

New Delhi.

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