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Synopsis

The Supreme Court has on January 18, 2024 said that a Deputy Commissioner, being an IAS officer or a state civil service officer, cannot be a reporting authority of Superintendent of Police, belonging to IPS cadre, for initiation of annual confidential report or annual performance appraisal reports.

A bench of Justices Aniruddha Bose and Sanjay Kumar confirmed the Gauhati High Court's judgment which 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. 

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, which were thereafter replaced by the All India Services (Performance Appraisal Report) Rules, 2007, 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, the court noted.

The question before the court was 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.

As per Rule 63(iii) of the Manual, the ACR/APAR of an 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.

The Assam government contended that a government servant has no right, much less a legal right, to insist that his/her ACR/APAR ought to be initiated by a particular ‘Reporting Authority’. The state also said that it is not necessary that a ‘Reporting Authority’ should be the immediate superior and it is sufficient if the authority supervises his/her performance.

The appellants also pointed 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. 

The respondents, on the contrary, submitted that archaic Rule 63(iii) of the Manual is not compatible with the scheme obtained 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. They also pointed out that Section 14(2) of the Act of 2007 makes it clear that the Deputy Commissioner cannot interfere with the internal organisation or discipline within the police force in the district and can only inform the SP if the conduct and/or qualification of a police officer affects the general administration of the district. 

The bench, however, said that 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. 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 organisation of the police in the district or with discipline within the police force, court noted.

"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," the bench said.

"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," the bench added.

The appellant also submitted that the Government has been vested with the discretion of empowering any of the supervising authorities as the ‘Reporting Authority’ and it 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 bench said.

It also rejected the 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.

"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," the bench said.

The court said that the Government, no doubt, was given discretion to empower any of the authorities who supervise the performance of the 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 and both authorities must belong to the same service or department. 

Attorney General R Venkatramani suggested that this definition should 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," the bench said. 

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, the bench added.

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 authority to interfere with the internal organisation and discipline of the police force," the bench said.

"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," the bench said.

The court also said that 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 process," the bench said.

According to December 28,1990 circular, issued by the Government of India, the bench pointed out it stipulated that the ‘Reporting Authority’ should be in a higher grade of pay than the officer reported upon. 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, the court noted.

The bench also said that it was not impressed with the submission that the Deputy Commissioner is the most suitable person to assess the performance of the SP, as he works under his control and direction.

It also noted that '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, it said.

In its conclusion, the bench said, "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 organisation of the police force, which would be contrary to the mandate of Section 14(2) of the Act of 2007". 

Case Title: The State of Assam and others Vs Binod Kumar and others