Supreme Court - Daily Orders
Ajay Kumar Pandey vs Union Of India Through The Union Home ... on 2 December, 2015
Bench: Kurian Joseph, Rohinton Fali Nariman
1
ITEM NO.3 COURT NO.13 SECTION IVB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).
12119-12120/2014
(Arising out of impugned final judgment and order dated 02/11/2012
in CWP No. 5597/2012 and 08/11/2013 in RA No. 295/2013 passed by
the High Court Of Punjab & Haryana At Chandigarh)
AJAY KUMAR PANDEY Petitioner(s)
VERSUS
UNION OF INDIA
THROUGH THE UNION HOME SECRETARY,
MINISTRY OF HOME AFFAIRS, GOVT OF INDIA
NORTH BLOCK DELHI AND
THE DIRECTOR GENERAL CRPF DELHI Respondent(s)
(with interim relief and office report)
Date : 02/12/2015 These petitions were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s) Mr. Vivek K. Tankha, Sr. Adv.
Mr. Rahul Kaushik,Adv.
Mr. Rishabh Sancheti, Adv.
Mr. Sachin Pujari, Adv.
Mr. Manu Chaturvedi, Adv.
Mr. Parth Tiwari, Adv.
For Respondent(s) Mr. Kuldip Singh,Adv.
Mr. AshokK. Srivastava, Adv.
Ms. Sushma Suri,Adv.
Ms. Binu Tamta, Adv.
Mr. N. Sai Vinod, Adv.
UPON hearing the counsel the Court made the following
Signature Not Verified
O R D E R
Digitally signed by ASHWANI KUMAR Date: 2015.12.04 16:43:15 IST Reason: Heard Mr. Vivek K. Tankha, learned senior counsel appearing for the petitioner and Mr. N. Sai Vinod, learned counsel appearing for the State of Punjab and Ms. Binu Tamta, learned counsel 2 appearing for the Union of India.
The petitioner approached the High Court of Punjab and Haryana at Chandigarh challenging the vires of Punjab Absorption of Officers of Para Military Forces (Group-A) Services Rules, 2005 (hereinafter referred to as 'the Service Rules, 2005'). According to the petitioner, in terms of the Service Rules, 2005 the petitioner could not get the benefit of the service rendered by him in Central Reserve Police Force(hereinafter referred to as 'CRPF')while absorbing him to the Punjab Police. He joined service in CRPF in the year 1986 as direct a recruit to the post of Deputy Superintendent of Police. December, 1990, he was posted as Staff Officer of Shri KPS Gill, IPS who was then working as Director General, CRPF, CRPF Headquarters, New Delhi. When Shri KPS Gill moved to Punjab, though the petitioner remained in his parent cadre CRPF, he served in Punjab Police directly under Shri KPS Gill until March, 1999 when he was repatriated to CRPF. While so, the Ministry of Home Affairs, Government of India wrote to the Government of Punjab that since the petitioner had been continuing for quite long as Security Coordinator of Shri KPS Gill, and keeping in view also the request of the Government of Punjab, Union of India had decided that the petitioner be considered for deputation and absorption in Punjab Police. Accordingly, the Director General of CRPF wrote to the Government of Punjab that, since the petitioner, though promoted to the rank of Commandant, had been coordinating the security of Shri KPS Gill in the State of Punjab, and though repatriated from Punjab Police, the petitioner had been actually continuing with Shri KPS Gill and in 3 view of such long absence of the petitioner from the main stream of CRPF, the Ministry of Home Affairs,Government of India had decided that the Punjab Police should take the petitioner on deputation basis and then absorb him in Punjab Police. Accordingly, the petitioner was taken on deputation in Punjab Police with a view to absorption, in the year 2003. It appears that Government of Punjab framed the Service Rules,2005 and notified the same on 22nd July, 2005. In terms of the Service Rules, 2005, the petitioner was absorbed in the Punjab Police without giving any benefit of his past service in CRPF, against newly created ex-cadre post. Obviously unhappy, the petitioner put up two grievances before the Government of Punjab and ultimately, pursued those grievances before the High Court of Punjab and Haryana.
(1) In CWP No. 12173/2009, the petitioner claimed that the Service Rules, 2005 could not apply to his case and instead of appointing him in ex-cadre post, he should be absorbed in Punjab police. (2) In CWP No. 12207/2009, the petitioner claimed promotion as Deputy Inspector General of Police from the date his juniors in his parent cadre CRPF were promoted in terms of Rule 6 of the Service Rules, 2005. The second writ petition was disposed of vide judgment dated 08.01.2010. Pursuant to which the petitioner was granted promotion as Deputy Inspector General of Police retrospectively w.e.f. 16.10.2008.
The Civil Writ Petition No. 12173 of 2009 came up for consideration on 27.02.2012. It appears that the petitioner sought an amendment of the petition incorporating one additional 4 prayer. However, the High Court passed the following order:
“Instead of allowing the petitioner to amend the writ petition, we permit him to file a fresh petition on the same cause of action as well as to challenge the vires of the Rules. Learned counsel for the responents have no objection to the same. The writ petition is dismissed with liberty as aforementioned.” Accordingly, the petitioner filed CWP No. 5597 of 2012 incorporating also a challenge to the Absorption Rules. The writ petition was finally heard and disposed of by the impugned judgment dated 02.11.2012. It appears that the High Court has mainly taken the following factors for disposal of the writ petition:
1. The facts showed that before the petitioner was absorbed in Punjab Police, he had given an undertaking that he would abide by the Service Rules, 2005.
2. The petitioner having claimed promotion at par with his juniors in the parent cadre CRPF in terms of Rule 6 of the Absorption Rules, thereafter the petitioner cannot turn around and challenge the very same rules. The High Court, therefore, took the view that at least both writ petitions should have been sought to be heard together and having not done that, the High Court was not inclined to consider the writ petition which is, accordingly, dismissed.
Aggrieved,the petitioner approached this Court in SLP (c) ...CC 12278/2013. When the said special leave petition came up for hearing before this Court, the petitioner was permitted to go back to High Court to file a review petition since obviously the writ petition challenging the inapplicability of the Rules had been 5 filed at an earlier point in time. This Court also granted liberty to challenge the main order if the petitioner does not get any relief from the High Court.
The High Court, however, dismissed the review petition by a non-speaking order in the following manner:
“Heard. No merit. Dismissed.” We have referred to the factual matrix in detail only to show the background of the litigation the petitioner pursued and also to give an indication how the High Court has gone wrong even on facts. Be that as it may, during the course of hearing, we find that the Service Rules, 2005 contain a provision under Rule 12 enabling the Government to grant exemption in a case where the Government is of the opinion that it is necessary or expedient to do so. It is also pointed out that there are similar rules under the Punjab Police Rules enabling the Government to relax the rigour of the Rules in a case warranting such intervention of the Government. According to the petitioner having made a request to the Punjab Government to absorb the petitioner in Punjab Police, the Government should have absorbed him instead of appointing him in ex-cadre post. The petitioner has also made a reference to the meritorious service rendered by him for the Nation and for the State. Still further, it is pointed out that the major part of his service was in Punjab prior to the appointment in the ex-cadre post, having been attached to Shri KPS Gill.
Having heard learned senior counsel for the petitioner, learned counsel for the Union of India and learned counsel for the State of Punjab, we are of the view that the petitioner should be 6 permitted to make an appropriate representation before the Government of Punjab seeking relaxation of the rigour of Rules in the matter of absorption in Punjab Police. We do not want to discuss the issue any further, since, in any case, Government of Punjab will have to consider the merits of the case. Accordingly, we permit the petitioner to make a detailed representation before the Government of Punjab within four weeks from today seeking relaxation of the Rules concerned for enabling him to get absorbed in Punjab Police giving due benefit of service in CRPF. The Petitioner is also free to point out similar instances where other State Governments have granted such benefits. On receipt of such representation, the Government shall consider the same on merits. Petitioner if makes a request for personal hearing the same be also granted to him. Appropriate order on merits shall be passed by the Government of Punjab within six weeks from the date of receipt of the representation. The order, thus, passed shall be made available to this Court within two weeks thereafter. Post the matters on 04.04.2016.
(Ashwani Thakur) (Renu Diwan)
COURT MASTER COURT MASTER