Intervention by Deputy Commissioner during exercise of performance assessment of SPs of districts in Assam, by virtue of Rule 63(iii) of Assam Police Manual, cannot be countenanced: SC confirms Gauhati HC’s decision terming Rule 63(iii) as invalid
Justices Aniruddha Bose & Sanjay Kumar[18-01-2024]

Read Order: The State of Assam and others v. Binod Kumar and others[SC-CIVIL APPEAL NO. 1933 OF 2023]

Tulip Kanth

New Delhi, January 19, 2024: The Supreme Court has upheld the decision of the Gauhati High Court invalidating Rule 63(iii) of the Assam Police Manual on the ground that it was in direct conflict with Section 14(2) of the Assam Police Act, 2007.The Top Court has clarified that the Deputy Commissioner should notbe theReporting Authority to initiate Annual Confidential Reports or Performance Appraisal Reports of IPS Officers working as District Superintendents of Police (SPs) in the State of Assam.

The main issue in this case was 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.

The question to be answered was Rule 63(iii) of the Assam Police 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, was that this Rule is violative of Section 14(2) of the Assam Police Act, 2007.

It was the case of the appellants 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. It was argued that there is no inconsistency in Rule 63(iii) when compared with the scheme of the Act of 2007 and the All India Services (Confidential Rolls) Rules, 1970/2007 Rules. Referring to All India Services (Performance Appraisal Report) Rules, 2007and the 1987 amendment of Rule 2(e) of the 1970 Rules, the appellants contended 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.

The respondents, on the other hand, pointed 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 qualification of a police officer affects the general administration of the district. They contended 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.

The Division Bench of Justice Aniruddha Bose & Justice Sanjay Kumar made it clear that IPS Officers, being members of an All India Service, would be amenable to the 2007 Rules. Section 65 of the Act of 2007 states 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”, the Bench noted.

As per the Bench, 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 Bench stated that such discussion clearly implied that both authorities must belong to the same service or department. In effect, Rule 63(iii) of the Manual did not fit in with the scheme obtaining under the 1970 Rules and the 2007 Rules, the Bench further added.

Referring to the Manual& specifically Rule 25, the Top Court opined 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.

It was the opinion of the Bench that the Deputy Commissioner should not be the Reporting Authority of the SP of that district. The reason being 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.

Placing reliance upon Circular No. 11059/4/89-AIS.III, dated 28.12.1990, issued by the Government of India, the Bench clarified that the Reporting Authority must necessarily be in a higher grade of pay than the officer who is being reported upon.

The appellants had argued that the Deputy Commissioner is the most suitable person to assess the performance of the SP, as he works under his control and direction, but the Bench was not impressed with the same. 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. Referring to Clause 6 in Rule 3, the Bench opined 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, the Bench noticed.

“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”, the Bench held while dismissing the appeal.