UP Police Regs 450Chapter 30 · Promotions
Section 450 · Paragraph 439. DIG to obtain information about Sub-Inspectors during annual visits
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(1) During their annual tour of inspection, all Deputy Inspectors General of the Range shall, in order to ascertain the manner in which all Sub-Inspectors approved for promotion to the rank of Inspector, whether acting or permanent, have performed during the year and the general reputation they have acquired, inquire about them from the District Magistrate and Superintendent of Police, and meet them personally, whenever possible, while inspecting the police stations where they are posted. At the close of the tour season in April, the Deputy Inspector General of each Range shall give his opinion for each officer, clearly stating whether he recommends his name to be retained in the approved list or to be removed from it, and in the latter case, giving reasons for his recommendation.
Provided that in districts where the Collector/Deputy Commissioner is in charge of a Division, his functions under this paragraph shall be exercised by the Additional District Magistrate (Executive).
(2) The Deputy Inspector General of the Criminal Investigation Department and the Assistant Inspector General of the Railway Police shall similarly examine and report in April of each year on the Sub-Inspectors under their charge who are on the approved list.
(3) The report prepared under paragraphs (1) and (2) shall be placed before the Committee constituted by the Inspector General under paragraph 438 and if the Committee agrees with the recommendation for removal of any name from the list, it shall order the removal of the name of the officer in question from the approved list.
(4) Where a Deputy or Assistant Inspector General has recommended removal of any name from the approved list, the officer in question shall not be considered for promotion until a Committee has been constituted and has decided on the action to be taken on the recommendation. Temporary vacancies for which the officer recommended for removal would otherwise have been promoted shall be filled by promotion of the Sub-Inspector whose name immediately follows on the approved list, pending the Committee's decision.
Note
(1) No Right to Promotion - The mere presence of a Sub-Inspector on the selection list does not confer an absolute right to promotion. Even the fact that he has been granted a temporary or officiating promotion does not entitle him to continue in that post, and he may be demoted at any time during the two-year probation period if his performance is found unsatisfactory. His contention that his inclusion on the selection list for promotion or his actual promotion entitles him to continue in that post was rejected. In G.S. Ramaswamy vs. State, it was also decided that even after the completion of the probation period, a person does not get the status of a permanent member in the service unless the rules of his posting expressly provide for it.
(2) Show cause notice is necessary - In the earlier decided case, Dineshwar vs. CCS Eastern Railway, it was decided that removing a name from the approved list also affects the possibility of future promotion of the employee, hence the authority should issue a show cause notice and pass an order after giving an opportunity of being heard. However, in Sheetla Prasad vs. North Eastern Railway, it was not justified that an opportunity of being heard is necessary to be given to the employee before removing the name from the approved list.
(3) Notice Stage - If it is not necessary to provide an opportunity to show cause before removing a name from the approved list, then serving a show cause notice after the removal and before the actual reduction does not seem to be in keeping with the spirit of fair opportunity. Once a servant's name is removed from the selection list, he cannot be retained in the promotion, no matter how satisfactory his response to the show cause notice may be. He is demoted not because his response was unsatisfactory, but because his name has been removed from the approved list. While the right to promotion is not an inherent right, the inclusion of a name on the approved list gives rise to the idea of promotion, but if the name is removed, the right to be considered for promotion is also lost.
(4) When Notice is Not Necessary - The rules of natural justice do not require that a show cause notice be issued for overstepping the authority of a superior officer. The statement that notice is necessary was not accepted in Government of India v. M.L. Kapuri.
(5) When does reversion constitute a demotion? The Court held in State v. Mullaraj that reversion is not a demotion, because under the rules, the person has the right to be reconsidered, and once his name reappears on the list, he becomes eligible for promotion. However, in A.P. Dharani, the Allahabad High Court held that demotion occurs if the possibility of promotion is postponed indefinitely. The reason given is that only those sub-inspectors whose names are on the approved list are considered for promotion, and once their names are no longer on this list, their right to be considered for promotion is lost. Even if their name later appears on the approved list, it will be after those previously approved. Any temporary or officiating service rendered while posted to a permanent vacancy will not count towards their probation period. (6) Tests Given - Article 311 of the Constitution of India provides equal protection to both permanent and temporary employees in the matter of dismissal, without making any distinction between them. "Parshottam Lal v. Union of India" is a leading decision on this issue, holding that Article 311 applies to dismissal as a punishment, but not to termination or reduction in rank, which are not punishments. It also held that employees have no right to probationary or officiating postings, whether in permanent or temporary positions. This decision sets out two tests: (1) Does the employee have a right to continue in his or her position? (2) Does the order in question have adverse effects? If the order results in the forfeiture of a worker's pay or allowances, the loss of seniority in a permanent position, or the possibility of future promotion, the order is considered to have adverse effects. (7) The mere form of the order is not sufficient. An order to remove an employee's name from the selection list for promotion has serious adverse consequences. Before passing such an order, the official is obligated to give the State employee an opportunity to explain his or her conduct. The mere form of the order, reverting an employee to his or her temporary post, whether temporary or officiating, is not conclusive. Even if the order is not passed out of collateral damage or malice on the part of the official, it is liable to be set aside. If the order shows a punitive intent, even if it does not appear to be so, the affected State employee is entitled to prove a violation of Article 311, as decided in Jagdish Prasad v. State. (8) Withholding or Cancelling Promotion - In B. George v. IIG Police, it was held that if administrative proceedings are pending against an employee before a tribunal, the selection committee cannot postpone or defer consideration of his promotion, as there is no such prohibition in the statute. In O.P. Gupta v. Municipal Corporation, it was held that when an employee's ad hoc promotion was not considered because he had received a confidential adverse entry and departmental proceedings were pending, his promotion should be considered from the date when it became due, after he was relieved of the same. Another case, Ramesh Chandra Joshi v. State, further clarified that withholding or deferring promotion due to a pending inquiry is a form of punishment and is against the spirit of Article 16. The power to withhold or cancel limits the employee's rights and constitutional safeguards. (9) Change in circumstances after approval of promotion - The Supreme Court later took a different view from the view that the promotion of an employee whose name is on the select list cannot be stopped on the basis of the record of the case. In the case of N.M. Siddiqui, it held that the mere appearance of an applicant's name on the promotion list does not automatically entitle him to be promoted. It only entitles the individual to be considered for promotion, or in other words, he may have been considered eligible for promotion at the time of approval, but events that occurred after his inclusion on the select list may render him ineligible for promotion (1978 SC/ST 349). This sentiment was reiterated in Yad Ram Verma vs. State, dated 17-7-1980.
Provided that in districts where the Collector/Deputy Commissioner is in charge of a Division, his functions under this paragraph shall be exercised by the Additional District Magistrate (Executive).
(2) The Deputy Inspector General of the Criminal Investigation Department and the Assistant Inspector General of the Railway Police shall similarly examine and report in April of each year on the Sub-Inspectors under their charge who are on the approved list.
(3) The report prepared under paragraphs (1) and (2) shall be placed before the Committee constituted by the Inspector General under paragraph 438 and if the Committee agrees with the recommendation for removal of any name from the list, it shall order the removal of the name of the officer in question from the approved list.
(4) Where a Deputy or Assistant Inspector General has recommended removal of any name from the approved list, the officer in question shall not be considered for promotion until a Committee has been constituted and has decided on the action to be taken on the recommendation. Temporary vacancies for which the officer recommended for removal would otherwise have been promoted shall be filled by promotion of the Sub-Inspector whose name immediately follows on the approved list, pending the Committee's decision.
Note
(1) No Right to Promotion - The mere presence of a Sub-Inspector on the selection list does not confer an absolute right to promotion. Even the fact that he has been granted a temporary or officiating promotion does not entitle him to continue in that post, and he may be demoted at any time during the two-year probation period if his performance is found unsatisfactory. His contention that his inclusion on the selection list for promotion or his actual promotion entitles him to continue in that post was rejected. In G.S. Ramaswamy vs. State, it was also decided that even after the completion of the probation period, a person does not get the status of a permanent member in the service unless the rules of his posting expressly provide for it.
(2) Show cause notice is necessary - In the earlier decided case, Dineshwar vs. CCS Eastern Railway, it was decided that removing a name from the approved list also affects the possibility of future promotion of the employee, hence the authority should issue a show cause notice and pass an order after giving an opportunity of being heard. However, in Sheetla Prasad vs. North Eastern Railway, it was not justified that an opportunity of being heard is necessary to be given to the employee before removing the name from the approved list.
(3) Notice Stage - If it is not necessary to provide an opportunity to show cause before removing a name from the approved list, then serving a show cause notice after the removal and before the actual reduction does not seem to be in keeping with the spirit of fair opportunity. Once a servant's name is removed from the selection list, he cannot be retained in the promotion, no matter how satisfactory his response to the show cause notice may be. He is demoted not because his response was unsatisfactory, but because his name has been removed from the approved list. While the right to promotion is not an inherent right, the inclusion of a name on the approved list gives rise to the idea of promotion, but if the name is removed, the right to be considered for promotion is also lost.
(4) When Notice is Not Necessary - The rules of natural justice do not require that a show cause notice be issued for overstepping the authority of a superior officer. The statement that notice is necessary was not accepted in Government of India v. M.L. Kapuri.
(5) When does reversion constitute a demotion? The Court held in State v. Mullaraj that reversion is not a demotion, because under the rules, the person has the right to be reconsidered, and once his name reappears on the list, he becomes eligible for promotion. However, in A.P. Dharani, the Allahabad High Court held that demotion occurs if the possibility of promotion is postponed indefinitely. The reason given is that only those sub-inspectors whose names are on the approved list are considered for promotion, and once their names are no longer on this list, their right to be considered for promotion is lost. Even if their name later appears on the approved list, it will be after those previously approved. Any temporary or officiating service rendered while posted to a permanent vacancy will not count towards their probation period. (6) Tests Given - Article 311 of the Constitution of India provides equal protection to both permanent and temporary employees in the matter of dismissal, without making any distinction between them. "Parshottam Lal v. Union of India" is a leading decision on this issue, holding that Article 311 applies to dismissal as a punishment, but not to termination or reduction in rank, which are not punishments. It also held that employees have no right to probationary or officiating postings, whether in permanent or temporary positions. This decision sets out two tests: (1) Does the employee have a right to continue in his or her position? (2) Does the order in question have adverse effects? If the order results in the forfeiture of a worker's pay or allowances, the loss of seniority in a permanent position, or the possibility of future promotion, the order is considered to have adverse effects. (7) The mere form of the order is not sufficient. An order to remove an employee's name from the selection list for promotion has serious adverse consequences. Before passing such an order, the official is obligated to give the State employee an opportunity to explain his or her conduct. The mere form of the order, reverting an employee to his or her temporary post, whether temporary or officiating, is not conclusive. Even if the order is not passed out of collateral damage or malice on the part of the official, it is liable to be set aside. If the order shows a punitive intent, even if it does not appear to be so, the affected State employee is entitled to prove a violation of Article 311, as decided in Jagdish Prasad v. State. (8) Withholding or Cancelling Promotion - In B. George v. IIG Police, it was held that if administrative proceedings are pending against an employee before a tribunal, the selection committee cannot postpone or defer consideration of his promotion, as there is no such prohibition in the statute. In O.P. Gupta v. Municipal Corporation, it was held that when an employee's ad hoc promotion was not considered because he had received a confidential adverse entry and departmental proceedings were pending, his promotion should be considered from the date when it became due, after he was relieved of the same. Another case, Ramesh Chandra Joshi v. State, further clarified that withholding or deferring promotion due to a pending inquiry is a form of punishment and is against the spirit of Article 16. The power to withhold or cancel limits the employee's rights and constitutional safeguards. (9) Change in circumstances after approval of promotion - The Supreme Court later took a different view from the view that the promotion of an employee whose name is on the select list cannot be stopped on the basis of the record of the case. In the case of N.M. Siddiqui, it held that the mere appearance of an applicant's name on the promotion list does not automatically entitle him to be promoted. It only entitles the individual to be considered for promotion, or in other words, he may have been considered eligible for promotion at the time of approval, but events that occurred after his inclusion on the select list may render him ineligible for promotion (1978 SC/ST 349). This sentiment was reiterated in Yad Ram Verma vs. State, dated 17-7-1980.
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