IMPORTANT POINT
The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.

Headnote:Service Law- Annual Confidential Report- Adverse entry-Pertained to character and antecedents- The decision of the administrative authority must be related to the purpose of the enabling provisions of Rules or Statutes, as the case may be. If they are manifestly unjust or outrageous or directed to an unauthorized end, such decisions can be set aside as arbitrary and unreasonable. Likewise, when action taken is ultra vires, such action/decision has no legal basis and can be set aside on that ground. When there are Rules framed delineating the powers of the authority as well as the procedure to be followed while exercising those powers, the authority has to act within the limits defined by those Rules. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. (Para 18)
        Punjab Police Rules, 1934- Rules 16.28 and 16.32 -Standing Order No. 65/ 1998 dated 8.2.1999 issued by the DGP, Haryana - Policy Instructions dated 28.8.1962- Rule 16 which falls in Chapter XVI relating to "punishment". This Rule 16 prescribes the procedure for conducting departmental inquiries and imposition of penalties consequent thereto. It has nothing to do with the confidential reports. (Para 14)
        Punjab Police Rules, 1934- Rule 13.17- Annual Confidential Reports- Rule only states the manner in which ACR is to be written. (Para 15)
        Punjab Police Rules, 1934- Rule 14.7-Thus, these Rules only pertain to recording of ACRs. There is no provision in the Rules containing any procedure for dealing with representations against the ACRs. That is provided in 1962 and 1999 Instructions. The second representation preferred by the appellant, in which the ACRs were expunged was not permissible. It was not only contrary to 1962 and 1999 Instructions, but was made after 9 ½ years from the date when first representation against the ACR was rejected. (Para 16)
        Punjab Police Rules, 1934- Rule 14.7- Over turning the decision of the predecessor - We would like to make certain comments, at this juncture, on the powers of the successor DGP, Haryana in over turning the decision of his predecessor who had accepted the representation and expunged the adverse remarks in a petition which was not maintainable and wholly unwarranted. The general principle is that merely because there is a change in the regime or when the successor assumes the office, he would not be entitled to review and reopen the cases decided by his predecessor. That would apply in those cases where the predecessor had passed the orders which he was empowered to pass under the Rules and had exercised his discretion in taking a particular view. Therefore, this proposition applies in a situation where order of the predecessor resulted in legal, binding and conclusive decision. However, the position would be different when it is found that the order of the predecessor was without jurisdiction or when a palpably illegal order was passed disregarding all the cannons of administrative law viz. when the predecessor's decision was without jurisdiction or ultra vires or when it was exfacie an act of favoritism. In the present case we find that not only the order passed by earlier DGP, Haryana was ultra vires, as that was not backed by any authority vested in it under the Rules as the representation/ mercy petition was not maintainable, even while exercising its discretion in passing that order, the alleged reasons are abhorrent to the good administration/ governance and in fact there was no valid reason or justification shown in exercise of the non existent power. It was, thus, not a case of mere discretion which the DGP was empowered to exercise or the exercise of power on rational basis. Undue sympathy, that too without stating any such sympathetic grounds would be anathema to fairness. There has to be fairness in the administrative action and it should be free from vice of arbitrariness. (Para 17)
        Judicial review of Administrative action- The matter can be looked into from another angle as well. In those cases where Courts are concerned with the judicial review of the administrative action, the parameters within which administrative action can be reviewed by the courts are well settled. No doubt, the scope of judicial review is limited and the courts do not go into the merits of the decision taken by the administrative authorities but are concerned with the decision making process. Interference with the order of the administrative authority is permissible when it is found to be irrational, unreasonable or there is procedural impropriety. However, where reasonable conduct is expected, the criterion of reasonableness is not subjective but objective; albeit the onus of establishment of unreasonableness rests upon the person challenging the validity of the acts. It is also trite that while exercising limited power of judicial review on the grounds mentioned above, the court can examine whether administrative decisions in exercise of powers, even if conferred in subjective terms are made in good faith and on relevant considerations. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or facts in a material respect. (Para 18)
       Facts of the case :
        Ist Group Cases
        C.A. No. 392 of 2008
        Adverse remarks were recorded pertaining to character and antecedents of the appellant by the then Superintendent of Police. As he wanted these remarks to be expunged, the appellant made a representation to the Deputy Inspector-General of Police. His representation was rejected on 26.5.1993. After almost 9 years, he made another representation to the Director General of Police, Haryana. This was accepted by the DGP vide orders dated 15.7.2002 and the aforesaid remarks were expunged. The DGP had expunged adverse remarks of many such police officials during this period namely from 1999-2002. After the change of regime when new Director General of Police took over the charge, he noticed this phenomena where the adverse remarks were expunged after substantial lapse of time and/ or for no valid reasons and in some cases even after all the departmental remedies had been exhausted by those officials, unsuccessfully. The DGP ordered a review of all such cases. After issuing show cause to the appellant and after getting his reply dated 22.5.2006 and after considering the same, DGP, Haryana passed the orders dated 21.6.2006 restoring/ reconstructing the earlier adverse remarks and recalled orders dated 15.7.2002 of the DGP, Haryana vide which the aforesaid remarks were expunged. The writ petition of the appellant challenging the aforesaid Orders dated 21.6.2006 has been dismissed.
        CA No. 395 of 2008
        The petitioner was communicated adverse annual confidential remarks for the period from 24.4.1998 to 31.3.1998. Dissatisfied with the aforesaid annual confidential remarks communicated to the petitioner, the petitioner made his first representation for the expunction thereof, on 13.12.1999. The aforesaid representation made by the petitioner was partly accepted by an order dated 22.6.2000. The petitioner submitted a second representation for the expunction of his other adverse remarks on 13.7.2000. The second representation made by the petitioner was also rejected on 27.12.2000. Dissatisfied with the aforesaid rejection, the petitioner moved a mercy petition i.e. the 3rd representation in his series of representations, on 9.8.2001. This mercy petition was rejected by the authorities on 22.11.2001. The petitioner, then made a 4th representation for the expunction of annual confidential remarks communicated to him for the period 24.4.1998 to 31.3.1999. This representation of the petitioner was accepted by an order dated 12.6.2002 (14.6.2002).
        C.A. No. 402 of 2008
        The representation against the ACR for the period 1992-1993 was rejected on 7.5.1996 and thereafter when fresh representation dated 20.6.2000 was made after a lapse of more than 4 years. It was accepted vide orders dated 12.7.2000 and the adverse remarks were expunged.
        C.A. No. 405 of 2008
        Adverse reports is for the period 1.4.2001 to 31.3.2002 which was communicated to him on 2.7.2002. His first representation was rejected by IGP on 30.9.2002, he filed second representation to the higher authority namely DGP which was rejected on 28.1.2003. Thereafter, he made another representation (purported to be a review) before the DGP in July, 2003 which was allowed on 30.9.2003 by expunging the adverse remarks.
        2nd Group Cases
        C.A. No. 396 of 2008 & SLP(C)No. 32653 of 2011.
        Adverse remarks relate to the period 1.4.2001 to 2.10.2001 which were communicated to him on 2.7.2002. He made the representation dated 24.8.2002 for expunction of these remarks to the Inspector-General of Police which was rejected on 10.3.2003. Immediately thereafter, in the month of March itself he filed the revision petition which was allowed on 2.5.2003 expunging the adverse remarks in toto and replacing the same with 'good' rating.
        C.A. No. 400 of 2008
        The ACR for the appellant pertains to 3.11.2002 to 31.3.2003 which were adverse in nature. These remarks were conveyed to him vide memo dated 8.6.2003, the appellant made representation against those adverse remarks vide his communication dated 30.10.2003 which was rejected by the Inspector-General of Police, Hisar Range, Hisar. He filed "appeal" thereagainst to the Director General of Police within a few days thereafter i.e. 30.10.2003 which was accepted by the DGP.
        SLP(C)No. 3932 of 2008
        Adverse remarks in the case of this petitioner are for the period 1.4.2001 to 31.3.2002. His representation dated 18.7.2002 was rejected. On 30.4.2003, he filed revision/ representation against order dated 30.4.2003 to the higher authority namely DGP which was by the DGP vide orders dated 6.10.2003 and the adverse remarks were expunged.
        C.A. No. 459 of 2009
        The respondent was communicated adverse ACR for the period 5.11.00 to 31.3.2001. On 13.11.2001 he submitted his representation dated 18.12.2001 which was rejected on 14.8.2002. Thereafter he filed the revision petition dated 4.10.2002 which was allowed on 13.2.2003. However, this order was recalled vide orders dated 18.1.2007 after giving show-cause notice dated 21.11.2006.
        3rd Group Cases
        C.A. No. 1721 of 2008
        The penalty imposed as a result of disciplinary proceedings was set aside on the basis of mercy petition filed by the appellant, that too after exhausting all the departmental remedies. show-cause notice dated 25.8.2006 was issued stating that there was no provision in the Rules for entertaining another petition (Mercy Petition) by the DGP without new material, once revision petition of the appellant had already been considered and rejected. It was, therefore, proposed to restore the penalty orders and the appellant was asked to show-cause against the proposed action.
        C.A. No. 1811 of 2008
        This is also a case of departmental inquiry which was held against the appellant and culminated an order of dismissal from service on 2.2.1999. His appeal was rejected by DIG on 1.7.1999. Thereafter, revision was rejected by the IGP ON 3.9.1999. More than 1 ½ years, thereafter he preferred mercy petition which was allowed by DGP, Haryana and the punishment of dismissal was reduced to stoppage of 5 increments. This order was also recalled after giving show-cause notice, vide orders dated 16.10.2006.
       Findings of the Court :
        Ist Group Cases
        C.A. No. 392 of 2008
        It was open to the respondents to take corrective measures by annulling the palpably illegal order of the earlier DGP, Haryana.
        CA No. 395 of 2008
        it is clear that such a mercy petition, in the form of 4th representation, at the hands of DGP, Haryana was impermissible in law.
        C.A. No. 402 of 2008
        This case is thus, on the same footing as Vinod Kumar's case. The appeal is accordingly dismissed.
        C.A. No. 405 of 2008
        The appellant had earlier exhausted the remedy of first representation before the immediate officer and second representation to the higher officer namely DGP. Thereafter, DGP could not entertain any further representation or review except on "new facts".
        2nd Group Cases
        C.A. No. 396 of 2008 & SLP(C)No. 32653 of 2011.
        Once a representation is rejected by the immediate superior officer, one more representation is permissible and allowed to be made to the next higher authority. Once, we find that the revision or second representation to the higher authority was made within prescribed period (in fact within few days of the rejection of representation by the IGP) and such a representation to the higher authority was permissible, it cannot be said in this case that the order of the DGP, Haryana was without jurisdiction i.e. on a representation "which was not permissible" in law.
        C.A. No. 400 of 2008
        This appeal is also allowed and the order of the High Court is set aside.
        SLP(C)No. 3932 of 2008
        It was not a case of second representation to the same authority. Another representation to the higher authority was made which is permissible under the Rules and that too immediately after his first representation by the IGP was rejected. His case is thus para materia with C.A. No. 396 of 2008.
        C.A. No. 459 of 2009
        Second representation to a higher authority was clearly maintainable.
        3rd Group Cases
        C.A. No. 1721 of 2008
        The mercy petition was not filed within one month. Further, it was not filed on the ground of material irregularity in the proceedings or by producing any fresh evidence. On the contrary, as pointed out above, the DGP while allowing the mercy petition specifically recorded that there was no irregularity in the conduct of departmental proceedings. In spite thereof, he cancelled the order of penalty without giving any cogent reasons. Such a order was palpably illegal and was rightly set right departmentally.
        C.A. No. 1811 of 2008
        In view of our discussion in C.A. No. 1721 of 2008, we find that here also such a mercy petition was not maintainable which was not only filed belatedly but no fresh material was also furnished. allowing the mercy petition without reason was clearly untenable and was rightly recalled.
       Result : Orders accordingly.

JUDGMENT :

A.K. SIKRI, J.

1. Though all these appeals were directed to be heard together, during the course of hearing, it transpired that on facts all these cases are not identical or of similar nature. At the same time these appeals can be categorized in three groups. These appeals have arisen from the judgments of Punjab and Haryana High Court. First judgment in point is dated 4.4.2007, which is the main judgment, passed by the High Court in batch of writ petitions with CWP No. 9805 of 2006 as the lead case. Appeal in the said case is C.A. No. 392 of 2008. Therefore, we propose to start from this appeal so that the veracity or the legality of the main judgment is discussed. Some of other appeals fall in this group and discussions in other groups of appeals would also flow from this case. In this manner, we would be in a position to proceed systematically and coherently. Ist Group Cases C.A. No. 392 of 2008

2. The appellant in this appeal was recruited into the police service in the State of Haryana as a Constable in the year 1971. He got promotion to higher ranks from time to time and became Inspector of Police in the year 2002. During the course of his employment, an adverse entry was recorded in his Annual Confidential Report (hereinafter to be referred as 'ACR') for the period 11.10.1989 to 31.3.1990. Though the exact report was not placed on record either before the High Court or this Court, it is a common case of the parties that the ACR for this period related to adverse comments on his “integrity”. It was acknowledged by the appellant's counsel before the High Court that the said adverse remarks pertained to his character and antecedents.

3. These remarks were recorded by the then Superintendent of Police, Hisar Range, Hisar. As he wanted these remarks to be expunged, the appellant made a representation to the Deputy Inspector-General of Police, Hisar. His representation was rejected on 26.5.1993. Initially, there was a stoic silence on the part of the appellant who did not pursue the matter further for quite some time. However, he woke up from slumber and after almost 9 years, he made another representation to the Director General of Police, Haryana. This was accepted by the DGP vide orders dated 15.7.2002 and the aforesaid remarks were expunged. The operative part of the order of the DGP, Haryana, in this behalf, is as under:-

“Mercy Petition of ASI Vinod Kumar NO. 345/SR5S (now SI No. 56/H) against the adverse remarks in the matter of integrity recorded his ACR for the period from 14.11.89 to 31.3.1990, has been considered on the basis of available record. The departmental enquiry was conducted on the charges of carelessness and indiscipline in which he was awarded a punishment of censure. No advice/ warning was awarded to him in the matter of integrity. But the reporting officer has doubted his integrity. Thus, the adverse remarks are uncalled for and without any basis and will not stand scrutiny of the judiciary. The mercy petition is accepted and adverse remarks are expunged in the interest of principles of natural justice. The representations may be informed accordingly.”

4. As would be seen in almost all these appeals before us, the DGP had expunged adverse remarks of many such police officials during this period namely from 1999-2002. After the change of regime when new Director General of Police took over the charge, he noticed this phenomena where the adverse remarks were expunged after substantial lapse of time and/ or for no valid reasons and in some cases even after all the departmental remedies had been exhausted by those officials, unsuccessfully. The new DGP, therefore, issued Instructions dated 9.6.2005 to all Range Inspector General of Police, Railways and Technical Services, Haryana and the Inspector General of Haryana Armed Police, Madhuban. In these Instructions, it was stated that he had come acr

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2013 Supreme(SC) 985

IMPORTANT POINT The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.

Cases Referred (4)

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IMPORTANT POINT
The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.