Punjab-Haryana High Court
Ajay Kumar Pandey vs Union Of India And Others on 2 November, 2012
Author: A.K. Sikri
Bench: A.K. Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.5597 of 2012 (O&M)
DATE OF DECISION: November 02, 2012
Ajay Kumar Pandey
.....Petitioner
versus
Union of India and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE
Present: Mr.R.K. Malik, Senior Advocate with
Mr.Rajat Mor, Advocate for the petitioner
Mr.Sukhdeep S. Sandhu, Senior Standing Counsel,
for respondent Nos.1 and 4
Mr.J.S. Puri, Addl. Advocate General, Punjab, for
respondents Nos.2 and 3
..
A.K. SIKRI, C.J.:
The petitioner, who had risen to the call of the Central Government and State of Punjab, had joined the Punjab Police on deputation basis in November, 1991, to be a part of police force for carrying out anti-terrorist operations and getting absorbed in the Punjab Police thereafter, today feels that he has been given rough and shoddy treatment and his legitimate right is taken away by the State of Punjab with the framing of Punjab Absorption of Officers of Para Military Forces (Group-A) Service Rules, 2005 (hereinafter referred to as the "Service Rules, 2005"). In an attempt to vindicate his stand, he has chosen to approach this Court by way of CWP-5597-2012 (O&M) -2- present writ petition filed under Article 226 of the Constitution of India, seeking quashing of rules to the extent they deprive him of seniority by including the period of service he rendered in Central Reserve Police Force (CRPF) before coming to Punjab Police on deputation. The story-line of this episode culminating into the framing of impugned service Rules is to be projected as follows.
The petitioner had joined CRPF as a direct recruit to the post of Deputy Superintendent of Police (now called Assistant Commandant) on 11.10.1986. It is Group-A post in the Government of India. In 1990-91, the petitioner was posted in Jammu & Kashmir (J&K). He boasts of spearheading into anti-terrorist operations in Baramulla (J&K) and had formed Special Task Force (STF) with maximum success. He has stated, which fact is not denied, that he was instrumental in arresting/neutralizing many militants in J&K which led to recovery of 28 AK-47 rifles, 4 GPMGs, 3 rocket- launchers with rockets, 29 pistols/revolvers, 80 grenades, 35 anti- personnel mines and large number of magazines and ammunition. For these heroic deeds, the petitioner was even commended by the then Governor of J&K. In December-1990, the petitioner was posted as Staff Officer of Shri K.P.S. Gill, IPS, who was, at that time, working as Director General/CRPF, CRPF Headquarters, New Delhi.
When the State of Punjab was facing extremist activities in the year 1991, to curb these activities, Shri Gill was posted as DGP, Punjab. It is a matter of common knowledge that many police officials of Punjab Police, for various obvious reasons, were unable to 2 CWP-5597-2012 (O&M) -3- put effective resistance to such anti-national activities. Need was felt to have manpower from other para-military forces in the Punjab Police. At that time, the petitioner volunteered to come along with Mr. Gill to Punjab to look after his security and to carry out specific intelligence based anti-terrorist operations. He worked in this capacity from November-1991 to September-1995. During this period, though he remained on the strength of CRPF, but served in Punjab Police directly under Shri Gill. In September-1995, however, he was taken on deputation with Punjab Police as SP/Security and AIGP/Operations, Punjab with additional charge of security of Shri Gill, who had retired by then, as Z+ Category Protectee.
In March-1999, the petitioner was repatriated to CRPF. At that time, he was also promoted as Commandant in CRPF vide Signal dated 13.1.2003 and he took charge of his post on 27.1.2003. When he was working in his parent department, viz., CRPF on 27.11.2002, he received a signal to take his willingness for ultimate absorption in the Punjab Police. He gave his willingness/consent on 4.12.2002 which was duly forwarded by the Commandant, 28 th Battallion, CRPF. The Punjab Police also gave written consent for the same. Ultimately, in May-2003, the petitioner joined Punjab Police on deputation (second deputation). At that time, he gave undertaking to CRPF on 13.5.2003, which, inter alia, stated that as he was to be absorbed in the main stream of Punjab Police, he was closing chapter with his parent organisation, namely, CRPF. From May-2003 to March-2006, the petitioner has served on second deputation to Punjab Police. This deputation was obviously on the 3 CWP-5597-2012 (O&M) -4- request of the Punjab Government to absorb him in the Punjab Police. He ultimately got absorption in the Punjab Police on 21 st March, 2006.
The Punjab Government vide notification dated 22nd July, 2005 notified the Service Rules, 2005, which, inter alia, provided that absorption would be against the newly created Ex-cadre post (Rule 2(a); members of service will be considered for promotion on the date on which their juniors in parent cadre are promoted; and they shall not be entitled to claim benefit of seniority with members of the Punjab Police service. The petitioner feels aggrieved by such provisions in the impugned service rules. His submission is that on absorption, not only he becomes member of the Punjab Police Force, he is entitled for his seniority after counting the service rendered in CRPF as also for his promotion in the Punjab Police cadre on the basis of seniority so fixed, inasmuch as, after his absorption in the Punjab Police, he had severed his relations with CRPF and his promotion cannot be dependent upon the promotion given to his junior in the CRPF (parent force). For this reason, in the present petition, he has challenged the vires of some of the provisions of the impugned Service Rules, 2005, i.e., rules 2(a), 2(e), 5, 6 and 9. In this petition, the petitioner has arrayed Union of India as respondent No.1 and State of Punjab as well as Director General of Police, Punjab as respondents No.2 and 3, respectively. The Director General, CRPF, is impleaded as respondent No.4.
Respondents No.1 to 4 have filed common reply-affidavit affirming the averments made in the writ petition, insofar as they 4 CWP-5597-2012 (O&M) -5- relate to the circumstances in which the petitioner was deputed to Punjab Police as well as his absorption in Punjab Police at the instance of Union of India which was figured by the Ministry of Home Affairs (MHA) vide its D.O. Letter dated 15.11.2002. The details which are given in this behalf in this reply are to the effect that in view of petitioner's long continuance as Security Coordinator of Mr. K.P.S. Gill since 1990 and request of Government of Punjab and Mr. Gill from time to time to continue him on his assignment, it was decided that the petitioner may be considered for deputation and ultimate absorption in Punjab Police. On this basis, Commandant, 28th Bn was asked to intimate consent/willingness of the petitioner. Pursuant whereto, the petitioner expressed his willingness on 10.12.2002 which was submitted to the MHA. The MHA thereafter vide letter dated 10.1.2003 informed that it had no objection in granting NOC for sponsoring the name of the petitioner to the Government of Punjab for his deputation and ultimate absorption. Accordingly, the matter was taken up with Chief Secretary, Government of Punjab, on 29.1.2003 with the request for taking the petitioner on deputation and his ultimate absorption. In response, the State Government vide its letter dated 7.4.2003 wrote that the State Government had no objection for taking the petitioner to Punjab Police in the pay scale of Rs.14300-400-18300/- on State deputation basis on usual terms and conditions. The MHA conveyed its formal approval on 28.4.2003 and thereafter upon administrative orders passed on the request of Punjab Police, the petitioner proceeded on second deputation with Punjab Police on 14.5.2003. 5
CWP-5597-2012 (O&M) -6- The Union of India has further affirmed the averments of the petitioner that the orders were passed on the request of Punjab Police and the petitioner had proceeded on second deputation with Punjab Police with the implied understanding that he would be ultimately absorbed and will also be granted all consequential benefits of his past service including seniority in Punjab Police.
The respondents No.2 and 3, however, have opposed the writ petition and defended the framing of rules in question. They have their own version of the deputation of petitioner and such like persons. Though it is admitted that these few officers of para- military forces were taken on deputation in Punjab Police as they were conversant with fighting terrorism and laying ambush, it is also stated that they were recalled by the parent organizations as they had completed more than 5 years of deputation period. Under rules of the Government of India, it is also mentioned that during the course of operations carried out by the Punjab Police, few terrorists were killed/injured and their wards/dependants filed petitions in this Court. As a result of which these para-military forces' officers faced litigation and some of them were convicted also. After their repatriation, they had represented to their parent organizations for posting back in Punjab Police so that they could follow up the cases pending against them. They also requested for absorption in Punjab Police. Keeping such circumstances in view, these officers were absorbed in Punjab Police with the approval of the Finance Department against newly created 10 ex-cadre posts. It is also 6 CWP-5597-2012 (O&M) -7- stated that CRPF took up the matter with Chief Secretary, Punjab, vide letter dated 29.1.2003 to take the petitioner on deputation to Punjab Police and then consider his permanent absorption and, in response, State Government had sent letter dated 7.4.2003 giving its no objection to take him on deputation basis on usual terms and conditions, but the State Government did not make any commitment that the petitioner shall be absorbed in Punjab Police. Ultimately, the matter was reconsidered and rules in question were notified and under these rules, the petitioner was absorbed. The petitioner had given his willingness for absorption. It is further stated that the State Government had clarified to all concerned that the posts of these officers are such that when absorbed officers are posted against such posts, these posts automatically get created, but these posts remain separate from the cadre posts. It is, thus, submitted that petitioner has been posted against ex-cadre post as per Rule 2(a) of the Service Rules, 2005. However, later on the posting orders of the petitioner as DIG/Lokpal were cancelled. It is also stated that at the instance of the CRPF, the matter was examined again in a meeting under the chairmanship of Principal Secretary (Home), Punjab, in his office on 3.6.2008 and following decision was taken:-
"Though the date of joining the parent force will be taken as the initial determinant of inter-se seniority of absorbed officers, their final inter se seniority will be subject to the promotion of their juniors in their respective parent forces. Hence, individual representations of the absorbed officers shall be decided accordingly."
7
CWP-5597-2012 (O&M) -8- Maintainability of this petition is also challenged on the ground that the petitioner had filed another writ, viz., CWP-12201- 2009 in this court seeking promotion from the date when his junior in parent department i.e. CRPC was promoted. That petition was allowed vide order dated 8.1.2010 and, accordingly, the petitioner was given back-date promotion. On that basis, it was argued that petitioner had himself claimed promotion under these very rules in the aforesaid writ petition, which has also been given to him and, in these circumstances, he cannot blow hot and cold by challenging the same very rules under which he has already got certain benefit.
Learned counsel for the parties have argued on the same lines as taken up in the petition and affidavits, respectively. Mr. Malik, learned senior counsel appearing for the petitioner submitted that normally, it is a rule of service jurisprudence that when a person comes from other department on deputation or transfer and is permanently absorbed, he is to be given the benefit of service rendered in his erstwhile department for the purposes of seniority, etc. which cannot be wiped out. In support of his contention, he relied upon judgment of this Court in K. Madhavan and another vs. Union of India and others, AIR 1987 Supreme Court 2291, wherein this proposition is explained in the following manner:-
"21. We may examine the question from a different point of view. There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules 8 CWP-5597-2012 (O&M) -9- appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre."
Another judgment of the Hon'ble apex Court explaining the same principle in the case of SI Roop Lal and another vs. Lt. Governor through Chief Secretary, Delhi and others, 2000(1) RSJ 336 has also been relied upon by learned counsel for the petitioner, wherein the Court held that a deputationist was entitled to get his services, rendered in a equivalent cadre in the parent department, counted for the purpose of seniority in the deputed post. The court went to the extent of holding that even if there are 9 CWP-5597-2012 (O&M) - 10 -
any rules, regulations or executive instructions which have the effect of taking away the aforesaid service, same would be violative of Articles 14 and 16 of the Constitution of India and are liable to be struck down. Process in which the aforesaid dicta is laid down is traced to para 23 wherein, after taking note of its earlier judgment in K. Aujaiah and others vs. K. Chandraiah and others (1988) 3 SCC 218, the Supreme Court made following pertinent observations:-
"23. It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputated post would be violative of Articles 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the Memorandum "whichever is later" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/ appellants to count their 10 CWP-5597-2012 (O&M) - 11 -
service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored."
Mr. Malik, learned senior counsel appearing for the petitioner, projected another angle of the case by arguing that under no circumstances, the right, which had been accrued to the petitioner, could be taken away by the respondents in form of the impugned orders. This submission was founded on the premise that the petitioner had been sent to the Punjab Police on deputation (2nd deputation) in 2003 with clear understanding between the Government of India and Government of Punjab that the petitioner would be absorbed in the Punjab Police. Moreover, when he joined on second deputation in May-2003, no such impugned rules were framed by the State of Punjab. Therefore, under the normal rule, his services in the parent department, which was in equivalent cadre, had to be counted for the purpose of seniority. However, by framing of the rules subsequently i.e. vide notification dated 22.7.2005, his right is sought to be taken away, which, according to Mr.Malik, is impermissible. In support of this proposition Mr. Malik relied upon a decision of this Court in Bhim Sein Gupta & Others vs. State of Haryana & Others, 1997(2) AIJ 46, which lays down that seniority of officers joining the service before new rules has to be determined under the old rules and the seniority of members joining after amended rules would be determined under the amended rules. 11
CWP-5597-2012 (O&M) - 12 -
The aforesaid contentions may appear to be attractive on their face, however, when we look at the other side of the coin, we find these contentions to be of no merit. In the first instance, we refer to the judgment of the Apex Court in Arun Kumar & Ors. vs. Union of India and Ors., 2007(5) SCC 580. This judgment is almost on identical facts, inasmuch as, in that case also the incumbent, whose parent department was CRPF, came on deputation with Punjab Police and was absorbed ultimately in Punjab Police on the application of these very Service Rules, 2005. The Court held that the service rendered in the parent department would not be counted. The facts, in the said case, disclosed that respondent No.4 therein, namely, Ms. Amrit Brar was appointed as Assistant Commandant in CRPF on probation for two years on account of assassination of her brother Shri Avinder Singh Brar, IPS, who was an officer in Punjab Police and was killed by the terrorists. This appointment was not even on compassionate ground as she was not appointed in Punjab Police but in CRPF and this appointment was treated as an 'exception'. She completed her period of probation. Thereafter, on 16/17 August, 1993, she was appointed on deputation to the post of Superintendent of Police (SP) in Punjab Police. She retained her lien as Assistant Commandant in CRPF till 11.9.1998 when she was absorbed as DSP in Punjab Police. She was allowed all benefits including pay and seniority with effect from 9.6.1989. While she was on deputation and before her absorption in Punjab Police in 1998, she was promoted in March-1995 to the post of Deputy Commandant CRPF where she was still holding her lien. 12
CWP-5597-2012 (O&M) - 13 -
The appellants therein challenged the order of absorption and benefit of seniority to respondent No.4 from 9.6.1989. These appellants were the officers of the Punjab Police service. Their challenge was projected on the ground that Rule 14 of the Punjab Police Service Rules, 1959 (for short "1959 Rules") provided only two sources of recruitment, that is, by promotion and by direct recruitment and there was no rule in 1959 Rules providing source of recruitment through deputation. Moreover, according to them, respondent No.4 could not be given double benefit of compassionate appointment in CRPF and thereafter compassionate absorption in Punjab Police in the year 1998 and that too from 9.6.1989. They contended that giving her the benefit of seniority from 9.6.1989 would make her senior to almost 10 other officers. Many other contentions on similar lines were also raised including the contention that Service Rules, 2005 enacted by the State Government only provided for absorption against ex-cadre posts, which were created by those rules. This High Court dismissed the writ petition vide judgment dated 24.1.2006 and in these circumstances those appellants had approached the Supreme Court.
The Supreme Court found that appointment given to respondent No.4 on the assassination of the brave officer, Shri Avinder Singh Brar, IPS by the terrorists was an exceptional appointment as she was the only child of her old parents. The Supreme Court commended this act. The Supreme Court also did not find any infirmity in the action of the State Government, under the above circumstances, in appointing her as deputationist even in 13 CWP-5597-2012 (O&M) - 14 -
Punjab Police. It, however, observed that 1959 Rules do not provide for such appointment as deputationist in normal cadre, as an appointment on deputation cannot be treated as by way of "direct recruitment". However, at the same time, the apex court also held that even in the absence of any provision for appointment as a deputationist in the normal cadre, in exceptional cases, the Government can appoint deputationist in Punjab Police and case in hand was one such case. Therefore, there was no infirmity in the action of the State Government in appointment of Ms.Amrit Brar as a deputationist in the Punjab Police service. The moot question and the important one, in the circumstances, was as to whether she could be given the benefit of seniority with effect from 9.6.1989 when she was absorbed on 11.9.1998. After in-depth analysis of the 1959 Rules and finding that transfer/deputation was not the source of recruitment, the Supreme Court concluded that even when State Government could absorb her in exceptional circumstances, she was not entitled to count her seniority from 9.6.1989 thereby affecting the rights of those who were already in service and who had also rendered valuable services in combating the terrorism in Punjab.
Respondent No.4 as well as the State Government had specifically relied upon the judgment of K.Madhavan (supra) for the proposition that service rendered in the parent department on equivalent post can be counted for the purpose of seniority. This contention was turned down in the following manner:-
"Relying on this paragraph, it is urged on behalf of respondent no. 4, Ms. Amrit Brar, that her services in 14 CWP-5597-2012 (O&M) - 15 -
CRPF should also be taken into account in the matter of fixation of inter se seniority and that she was entitled to weightage with regard to the service which she had between 9.6.1989 and 16/17.8.1993. However, the judgment in the case of K. Madhavan (supra) clearly indicates that this Court examined the Service Rules in which there was a third source of recruitment, namely transfer, and, therefore, in para 21, this Court observed that, there was no much difference between deputation and transfer, and since under the rules transfer was the source of recruitment, O.P. Sharma was entitled to weightage for the service put by him as DSP in Rajasthan State Police Service. Admittedly, in the present case, transfer is not the third source of recruitment. On the contrary, the above judgment equates deputation with transfer. It does not equate deputation with direct appointment as done by the impugned judgment. To this extent, there is infirmity in the impugned judgment.
The reasons which prevailed with the Court in denying the benefit of service rendered by respondent No.4 in CRPF are found in the following passage of that judgment:-
"Before we proceed further, we may make it clear that, in our judgment, we have observed earlier that we do not find any infirmity in the action of the State 15 CWP-5597-2012 (O&M) - 16 -
Government in absorbing respondent no. 4 as Deputy S.P. in Punjab Police Service. However, there is a caveat. According to us, strictly on interpretation of the said 1959 Rules, there is no scope for opening of a third mode of recruitment. Deputation is not the source of recruitment under the said 1959 Rules. It is only as an exceptional case that respondent no. 4 was given the benefit of absorption in Punjab Police Service as Deputy S.P. and we do not find any fault with that exercise. It is the genuine exercise. However, when her services are regularized by the State not from 16/17.8.1993, when she stood appointed as a deputationist, but from 9.6.1989, when she was appointed as Assistant Commandant in CRPF, then infirmity in the action of the State Government crept in. CRPF functions cannot be compared with Punjab Police Service. Apart from policing, an officer of Punjab Police Service has to do the work of investigation of crime detection, which is not within the purview of CRPF. A Deputy S.P. in CRPF need not have the knowledge of CrPC, IPC etc., which an officer in Punjab Police Service needs to possess. The Service Rules governing CRPF are different from the Service Rules which governed Punjab Police Service. Therefore, even functionally, the two cadres are different. In fact, respondent no. 4, Ms. Amrit Brar, has not undergone training as contemplated under Punjab 16 CWP-5597-2012 (O&M) - 17 -
Police Service Rules. However, she has put in 5 years experience as Deputy S.P. in Punjab Police Service between 16/17.8.1993 and 11.9.1998. That experience should be given due weightage. In our view, having examined the above Punjab Police Service Rules, 1959, it is clear that deputation is not the source of recruitment. Direct recruitment is the source. Promotion is the source. However, deputation is not the source for recruitment. Moreover, in the present case, we are concerned with the rights of the appellants. We are concerned with the inter se seniority in the said post of Deputy S.P. since that seniority ultimately counts for promotion to the next higher cadre. The post of Deputy S.P. is a feeder post in that sense and when the post is a feeder post, the inter se seniority has the role to play. In the circumstances, if deputation is not the source of recruitment, then even in exceptional cases of this nature, weightage cannot be given, in the absence of the rules, to the services rendered by Ms. Amrit Brar in CRPF. Rule 14 talks of relaxation. However, Rule 14 is not applicable to the rules which do not provide for recruitment through deputation. Rule 14 would have applied if the said 1959 Rules had a third source of recruitment, namely, deputation. There is no such third source of recruitment. Hence, Rule 14 has no application. Rule 14 refers to relaxation of rules. Rule 14 contemplates existence of a 17 CWP-5597-2012 (O&M) - 18 -
rule of recruitment. If there is no such rule providing for third source of recruitment, the Government cannot relax a non existent rule. Therefore, the High Court had erred in treating deputation as a third source of recruitment. There is a difference between direct appointment as a source of recruitment and deputation/ transfer as a source of recruitment. In certain cases, cited before us, weightage has been given to the service put in by the transferee. However, in all those cases, the third source of recruitment was transfer/ deputation. In the present case, there is no such rule to that extent. There is an error in the impugned judgment of the High Court. As state above, Ms. Amrit Brar has put in 5 years service as a deputationist in Punjab Police Service between 16/17.8.1993 and 11.9.1998. She is certainly entitled to the weightage for the services rendered by her during these 5 years. However, she is not entitled to weightage of service between 9.6.1989 and 16/17.8.1993, as held by the High Court, for the fixation of inter se seniority."
That was a case where respondent No.4/Ms.Amrit Brar had been absorbed in Punjab Police in 1998 i.e. much before Service Rules, 2005 were framed. In the present case, the petitioner was absorbed in the year 2006 i.e. after the Service Rules, 2005 came into existence. No doubt, by that time, the petitioner had come on deputation to Punjab Police, i.e., in May-2003, however, he was still 18 CWP-5597-2012 (O&M) - 19 -
on deputation and had a choice to go back to his parent department, namely, CRPF. On the contrary, fully realising that these rules of absorption, namely, Service Rules, 2005 have come into force, he gave his consent for absorption under these rules. It has come on record that though there is a dispute as to whether any commitment was given by the State Government in the year 2003 before taking the petitioner on deputation about his ultimate absorption in the Punjab Police, that may not be a determinative factor. The facts which emerge on record show that before the petitioner was absorbed in Punjab Police he had given an undertaking that he would abide by the Service Rules, 2005. Though he now contends that it was under compulsion, the fact remains that his absorption was under Service Rule, 2005 for which he had given his willingness, as per office note dated 13.1.2006. Having regard to the aforesaid facts and keeping in view the dicta laid down by the Supreme Court in Arun Kumar's case (supra), we have no option but to reject the claim of the petitioner qua seniority by counting service rendered by him in CRPF.
There is yet another aspect of the matter which needs mention. The petitioner had earlier filed CWP-12201-2009 claiming his promotion as Deputy Inspector General of Police from the date his junior in CRPF had been promoted i.e. with effect from 16.10.2008. It is to be borne in mind that by that time the petitioner had been absorbed in Punjab Police. However, he claimed the aforesaid benefit invoking Rule-6 of Service Rules, 2005, which reads as under:-
19
CWP-5597-2012 (O&M) - 20 -
"A member of the service will be entitled for
consideration for promotion on the date on which his junior in parent force is promoted. But the promotion shall be made according to the relevant rules and instructions of the Punjab Government."
This writ petition was allowed vide judgment dated 8.1.2010 and petitioner has since been promoted as Deputy Inspector General of Police. On that basis, it was argued by the respondents that once the petitioner has obtained benefit under these very rules, he cannot now turn around and question the validity thereof on the principle of estoppel. Learned counsel for the petitioner tried to overcome this hurdle by referring to para-20 of the said writ petition wherein he had mentioned that he was contemplating to challenge the provisions of absorption rules through a separate writ petition and averments in that writ petition were without prejudice to the grounds being taken in the petition with regard to Absorption Rules, 2005. This plea is taken in para-20 of the petition which reads as under:-
"......The provisions of the absorption rules and other grievances relevant to service matters pertaining to the petitioner with reference to his absorption in Punjab Police are being challenged through a separate CWP and the averments and prayers made herein are without admission or prejudice to the grounds being taken in the 20 CWP-5597-2012 (O&M) - 21 -
accompanying petition with regard to the
Absorption Rules, 2005."
No doubt the petitioner had earlier filed such a petition, which he had withdrawn, however, in the aforesaid writ petition even when he had so stated, but he never filed "accompanying petition"
simultaneously with the earlier petition, which was decided on 8.1.2010. He took the benefit of Service Rules, 2005 in the aforesaid writ petition, which was decided on 8.1.2010. Two years thereafter, he has filed the present writ petition on 24.3.2012. The position would have been different had he filed both the petitions simultaneously and would have first got the present petition decided or at least got both the petitions decided simultaneously. However, after taking the benefit of promotion to the post of Deputy Inspector General of Police under these very rules, challenging the same rules at this belated stage would not be permissible. We are fortified in our view having regard to the judgment of the Supreme Court in the case of Cauvery Coffee Traders, Mangalore vs. Hornor Resources (Intern.) Company Ltd. 2012(1) RCR(Civil) 1.
As a result, we are constrained to dismiss the present writ petition. There shall, however, be no order as to costs.
( A.K. SIKRI )
CHIEF JUSTICE
November 02, 2012 (RAKESH KUMAR JAIN)
pc JUDGE
21