Punjab-Haryana High Court
Mukesh Malhotra vs State Of Haryana And Others on 10 September, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.2768 of 2007
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.2768 of 2007
Date of Decision: 10.09.2013
Mukesh Malhotra ..... Petitioner
Versus
State of Haryana and others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Sanjiv Bansal, Advocate,
and Mr. R.Kartikeya, Advocate,
for the petitioner.
Mr. Sunil Nehra, Sr. DAG, Haryana.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The challenge in this petition is to a show cause notice dated 23.10.2007 (P-18) issued by the Director General of Police, Haryana to the petitioner asking him to explain why antedated promotion and confirmation in the rank of Assistant Sub Inspector of Police and Sub Inspector accorded in Gurgaon Range should not be withdrawn and fresh dates be assigned for being brought in List-F as also further antedated promotion as Inspector of Police w.e.f. 12.11.2001. It has been stated in the show cause notice that keeping in view his parent range for the purposes of fixing seniority was the Ambala Range and since he sought transfer to Gurgaon Range and it was so ordered by the then Director General of Police, Haryana on 18.09.2003 should not be changed and his name brought on Promotion List 'F' w.e.f. 16.09.2004 instead of 27.07.2001 and further promotion as Inspector of Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -2- Police w.e.f. 21.09.2004 instead of 12.11.2001 in accordance with seniority accruing in Ambala Range. The notice was for rectification of the previous orders.
Against the show cause notice, the petitioner filed the present writ petition which came up for motion hearing and the Division Bench of this Court was pleased to issue notice of motion on 22.02.2007. The writ petition had been filed against an earlier show cause notice dated 10.10.2005 (P-11) and the final order dated 06.02.2007 (P-13) vide which the seniority assigned to the petitioner by order dated 16.11.2004 by the Inspector General of Police, Gurgaon Range, Gurgaon as a result of the order of the Director General of Police, Haryana was withdrawn. During the pendency of the petition, the show cause notice referred to above (P-18) was issued on 23.10.2007. The petitioner filed CM No.18740 of 2007 appending the show cause notice and praying for stay of its operation. The Division Bench of this Court by order dated 15.11.2007 issued an interim order restraining the respondents from passing final orders on the show cause notice. That stay has continued to operate and it is not disputed that in the meanwhile, the petitioner has been promoted as Deputy Superintendent of Police.
The facts in brief: while serving in his parent Ambala range, the petitioner was brought on Promotion List 'E' w.e.f. 10.11.1998 by the DIG, Ambala Range. He was confirmed in 2001. When the petitioner came to know that certain directly recruited probationary ASIs in Gurgaon Range had been brought on Promotion List 'E' w.e.f. 23.08.1995 earlier than him he felt aggrieved. The petitioner submitted a detailed representation dated Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -3- 07.02.2002 (P-4) to the Director General of Police, Haryana, Panchkula quoting Rule 13.4(1) of the Punjab Police Rules, 1934 (for short "the Rules") as applicable to Haryana requesting that in order to balance the uneven promotions amongst ranges the petitioner may be transferred to Gurgaon Range. Rule 13.4 deals with power to make officiating promotions. The rules provides that if the flow of promotioin is unevenly distributed amongst ranges, the Inspector General of Police shall make suitable transfers of Sub Inspectors on the promotion list from one range to another as an equalizer. The power to do the same for Sub Inspectors and Assistant Sub Inspectors and Head Constables vests in the Deputy Inspector General of Police who is the competent authority to make suitable transfers from one District to another under the aforesaid rule. Rule 13.4 reads as follows:-
"13.4. Power to make officiating promotions.
(1) Officiating promotions to the rank of inspector shall be made by Deputy Inspectors-General of ranges and the Assistant Inspector-General, Government Railway Police. If the flow of promotion is unevenly distributed amongst ranges, the Inspector-General of Police shall make suitable transfers of sub-inspectors on the promotion list from one range to another. (2) Officiating promotions to the rank of sub-inspector, assistant sub inspector and Head constable shall be made by Superintendents of Police and Assistant Superintendent, Government Railway Police. If the flow of promotion is unevenly distributed among districts, the Deputy Inspector-
General shall make suitable transfers of assistant sub-inspectors, head constables and constables and constables on the promotion lists from one district to another.
(3) All promotions concerning Inspectors, Sub-Inspectors, Sub-Inspectors, Assistant sub-inspectors and head constables made under this rule shall be published in the Police Gazette, and notifications by Superintendents shall be sent in through the Deputy Inspector-General, who shall have the power to revise such orders on recording reasons in each case. If any Superintendent has not enough men on lists. C, D and E in his district to fillMittal temporary Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -4- appointments in either rank, he is required to make, he shall apply to the Deputy Inspector-General for a man from another district." The request for transfer was acceded to by the Director General of Police, Haryana by his order dated 18.09.2003 (P-5) transferring the petitioner from Ambala Range to Gurgaon Range in exercise of power under Rule 13.4(1) of the Rules. This order not only transfers the petitioner from one range to another but it also orders that the petitioner may be adjusted in Gurgaon Range and his seniority be fixed on the basis of his appointment thereat as Probationary ASI. The petitioner had joined as Probationary ASI in District Ambala on 03.03.1989. In compliance of the order dated 18.09.2003 the petitioner was relieved from Ambala Range to join at Gurgaon Range. It appears that for more than a year the order was not complied with. The Director General of Police, Haryana speaking through DIG Headquarters issued letter dated 08.11.2004 to the Inspector General of Police, Gurgaon Range, Gurgaon to implement his decision already conveyed vide office memo dated 18.09.2003 and compliance report be sent at an early date. The Inspector General of Police, Gurgaon Range, Gurgaon implemented the order vide his consequential order dated 16.11.2004. The petitioner was given 23.08.1995 as the date when he would be deemed to have been brought on List 'E' with reference to the alleged junior Sub Inspector Manjit Singh who was promoted as Sub Inspector on 23.08.1995 and confirmed on 31.08.2000 in Gurgaon range. The petitioner was given the deemed date of confirmation as ASI w.e.f. 03.03.1992. By this order, the petitioner stood promoted as Sub Inspector on 23.08.1995 and was confirmed as such on 31.08.2000. By order dated 18.12.2004 (P-
10) the DGP Haryana granted antedated promotion to the rank ofMittal Inspector Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -5- w.e.f. 12.11.2001 instead of 16.09.2004 earned at Ambala Range.
The present controversy: The dispute in the present case started by an order dated 10.10.2005 (P-11) passed by the Inspector General of Police, Gurgaon Range, Gurgaon. This was a show cause notice to the petitioner. It was observed that seniority up to the rank of Sub Inspector is maintained at range level according to Punjab Police Rules, 1934 as applicable to Haryana. Since the petitioner had already been promoted and confirmed as Sub Inspector in Ambala Range on 13.11.1998 and 31.08.2001 respectively retrospective promotion and confirmation in the rank of Sub Inspector from 1995 and 2000 in Gurgaon Range was wrongful since the petitioner was not on the strength of Gurgaon Range on these dates; his transfer having been ordered to Gurgaon Range on 18.09.2003. By the show cause notice, the undue benefit of antedated promotion and confirmation in Gurgaon Range was sought to be withdrawn. The petitioner filed a reply to the show cause notice on 06.01.2006 (P-12) he sought the following four documents to enable him to submit a comprehensive and effective reply to the show cause notice:-
"1. Copy of appointment order of Shri Manjit Singh in the rank of A.S.I. and order bringing his name on list 'E'.
2. Copy of confirmation order in the rank of ASI, promotion as Sub-Inspector and confirmation as Sub-Inspector.
3. Gradation Lists of Inspectors as it stood on 01.01.2005 and 01.01.2006.
4. Instructions of Government under which a successor-in-office can review the orders of his predecessor."
It is the case of the petitioner that without supplying the information solicited the Inspector General of Police, Gurgaon Range, Gurgaon passed the final order dated 06.02.2007 withdrawing the benefits. Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -6- This order was passed without notice or hearing and, therefore, was issued behind the back of the petitioner.
Faced with the show cause notice and lack of response to the request for information, the petitioner pleads that he filed a suit for declaration and permanent injunction against the respondent - Government in the Court of Civil Judge, Senior Division, Panchkula challenging the show cause notice dated 10.10.2005. During the pendency of the suit, the petitioner was communicated with the impugned order dated 06.02.2007 received by him vide endorsement No.2203 dated 09.02.2007 transmitted from the office of the Additional Director General of Police, CID (H) Panchkula. The petitioner withdrew the suit through application dated 14.02.2007 with liberty prayed to challenge the impugned order dated 06.02.2007. Liberty was granted.
That is when the petitioner approached this Court invoking writ jurisdiction under Articlle 226 of the Constitution. On receiving notice of the petition from this Court, the respondents filed written statement of the Inspector General of Police, Gurgaon Range, Gurgaon. It has been urged that Rule 12.1 governs seniority of ASIs and SIs which is maintained at Range level. It is defended that since seniority is fixed range-wise the transfer from Ambala to Gurgaon would not confer right to carry erstwhile seniority in Gurgaon Range and, therefore, undue benefits have been granted to the petitioner which have been withdrawn by the impugned memo dated 06.02.2007 in compliance of Director General of Police, Haryana order dated 09.09.2005.
Heard learned counsel for the parties at length and perused the Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -7- record with their assistance.
Both the learned counsel have argued extensively on the strength of the provisions of the Rules including Rules 12.1, 13.1, 13.4 to 13.10 which deal with different stages of promotion of police personnel from Head Constable onward. A large range of arguments have been raised on either side. A great deal of time has been spent in the understanding the scope, ambit and object of Rule 13.4 of the Rules under which the initial order was passed by the Director General of Police, Haryana dated 18.09.2003 and which provision according to Mr. Bansal was sufficient to justify both transfer and consequential seniority in Gurgaon Range.
Mr. Bansal has strongly relied upon the written statement filed in CWP No.16399 of 2001 titled Rajinder Singh and others vs. State of Haryana and others in which the following preliminary objections were taken in a similar situation arising as in this case with respect to amplitude of rule 13.4. The same reads as follows:-
"1. That a meeting of Range Is.G.P. under the Chairmanship of Sh. R.S. Dalal, IGP/Gurgaon Range was held on 03.05.2001 to take action regarding imbalance in promotion to the rank of SI and ASI. In the meeting imbalance and uneven promotion in different ranks was discussed especially in view of Rule 13.4 of PPR 1934. Moreover, seniority of directly recruited ASIs is reckoned by the order of merit fixed by the selection body as provided in Rule 12.2 (3) (a) of PPR 1934. Keeping in view of the fact that ASIs of the same batch junior to them have already been promoted in Gurgaon and Rohtak Ranges 10 senior ASIs (5 ASI in each Range) were transfered from Ambala Range to Rohtak and Gurgaon Ranges. Thus, the transferor senior ASIs from one Range to another Range have been made only to avoid imbalance in promotion and not on pick and chose policy. The instruction issued vide this office Memo No.9327-33 dated 15.12.1995 quoted in the writ petition are not applicable to the transfer of confirmed ASIs. According to these instructions only confirmed HCs/Intermediate School Course pass HCs cannot be transferred tone Range to another Range. In case suchMittal confirmed Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -8- HCs/Intermediate School Course pass HCs are transferred in compelling circumstances from one Range to another Range they will be treated on deputation and will retain their original seniority in their present Range from where transferred.
Moreover, every Police Officer shall be liable to serve at place whether within or outside the state of Haryana and in any organization under the Central Government on being ordered so to do by the appointing authority. Every Police Officer empowered to section 3 of the Police Act 1888 Central Act, 3, 1888, when necessary, to exercise the power, functions and privileges of a Police Officer in any part of India. In the exercise of such functions a Police Officer is deemed to be member of the Police force of the State Union India, in which he is serving at the time. Hence, the Head of the Department is competent to transfer the Police Force in whole or in any part of the State as empowered in Rule 14.15 of PR 1934 as also as per Rule 1.1., 1.3, 1.4 and 1.5 of the PPR as applicable to Haryana."
The similar situation was justified by the State before this Court in the written statement which is dated 30.10.2001. Rule 13.4 as witnessed, however, speaks of officiating promotions. The word officiating has not been defined in the Rules. Para. 12 of the written statement filed in Rajinder Singh's case would also need attention:-
"12. That in reply to the contents of para no.12 of the petition, it is submitted that the instruction issued vide this office Memo No.93/27-33 dated 15.12.1995 quoted in the writ petition are not applicable to the transfer of confirmed ASIs. Accordingly to these instructions only confirmed HCs/intermediate School Course pass HCs cannot be transferred tone Range to another Range. In case such confirmed Hcs/Intermediate School Course pass HCs are transferred in compelling circumstances from one Range to another Range they will be treated on deputation and will retain their original seniority in the present from where transferred."
Mr. Nehra appearing for the State relies on a Full Bench decision of this Court in Raj Kumar, A.S.I. vs. The State of Punjab and others, 1980(3) SLR 779 which appears according to both counsel to be the only decided case on the interpretation of Rule 13.4. Paras.14, 15, 21, 22 and 27 Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -9- have been relied upon which read as follows:-
"14. With great respect it seems to me that the judgment in Sat Pal A.S.I. and Others v. The Delhi Admn. and Others1974(1) S.L.R. 733 did not adequately advert to and, therefore, failed to construe the true import of rule 13.4(2) and the earlier rule 13.9(2) which in express and distinct terms mention officiating promotion and substantive promotion to the rank of Assistant Sub-Inspectors. Not only that even the authority who was entitled to make officiating promotion was different from that entitled to make substantive promotion, the former being by the Superintendent of the Police and the latter the Deputy Inspector General of Police. The criterion for making these promotions has been separately prescribed, one is to be made in accordance with the principles laid in rule 13.1 and the other in accordance with rule 13.4(2).
15. Yet again if Sat Pal's case is to be viewed as an authority for the proposition that 'officiation' and 'being placed on probation' are synonymous terms then the same would come in direct conflict with the Full Bench judgment of this court in Sardul Singh Head Constable v. Inspector General of Police, 1970 S.L.R. 505, which has already been noticed in detail earlier. It is patent that this authority was not brought to the notice of the Delhi Bench but is inevitably binding on this Court and no challenge to its correctness was even remotely laid before us.
21. Reading the two rules 13.4 and 13.18 of the Rules, together, it appears to me that the terminology of officiation is used in contra-distinction to and distinctly separate from being placed on probation. Officiation is placed at a lower level than probation and only as a discretionary power, it is possible for the authorities to utilize it for the purpose of the reduction of the prescribed periods of probation. The two concepts appear to be sharply divided and distinctly well understood. To my mind it would not be possible to efface this distinction and to attempt to use them as inter-changeable or synonymous terms. The well settled canon of construction is that every word used in a statute must be given a meaning and nothing is to be construed as otiose or without purpose. With greater treating officiation and placed on probation which have been separately and advisedly used by the law makers as synonymous would, in my humble opinion, result in the infraction of the aforementioned twin rule.
22. Again I take the view that the learned counsel for the respondent- State was right in his stand that the nature of officiation does not either change or vary by the nature of the post against which a person officiates.Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -10-
The statutory rules do not merely contemplate 'officiating' against a temporary vacancy only. To hold so, by a process of interpretation would in my view, be unsupportable. The language in the statute is unlimited in its sweep. Therefore, officiation may well be against a wholly temporary vacancy as also against a regular or permanent vacancy. The framers had envisaged 'officiation' against all kinds of vacancies. In my view permanent vacancies cannot possibly be excluded from the concept of an officiation against them.
Yet again the stand that 'officiation' must necessarily be of a freeting or a very short duration is unsupported by principle or authority. Admittedly, there is no rule or statutory instruction which prescribes that officiation must be for a short period or that it cannot continue beyond a specific time. Indeed the firm stand of Mr. Sethi, learned counsel for the respondent-State is that officiation may be against a permanent vacancy and the exigency of service to requiring it may be of considerable length. Reliance is this context was placed on Sukhbans Singh vs. State of Punjab, Air 1962, S.C. 1711.
27. I would conclude, therefore, that in the relevant rules the terms 'officiation' and being placed on probation have been advisedly used as distinct and separate concepts. They cannot, therefore be either treated or deemed to be synonymous. Consequently, a mere officiation even against a permanent post of an Assistant Sub-Inspector of Police cannot be deemed to be one on probation against the said post. Rule 13.18 of the Rules in my view envisages an express order for putting an officiating official on probation and vests a discretion in the authority to permit periods of officiating service to count towards the period of probation. Till such an order is passed the official continues only to officiate against such post. The answer to the question formulated the opening part of the judgment is rendered as above."
In State of Haryana and others vs. Kashmir Singh and another, 2010(13) SCC 306 the Supreme Court has held that Government has the power to transfer Constables and Head Constables from one District to another and ASIs and SIs from one range to another and there is no absolute prohibition in the Rules from doing so. However, in such cases, their seniority has to be maintained either in the District or at the range level as the case may be despite transfers. However, Rule 13.4 was not discussed by Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -11- the Supreme Court in this case.
In my considered view, no useful purpose will be served to adjudicate this matter on merits by this Court at this stage since the show cause notice dated 10.10.2005 (P-11) and the final order dated 06.02.2007 (P-13) and the consequential show cause notice dated 23.10.2007 (P-18) do not consider the core issue with respect to Rule 13.4 and its relationship with Rule 12.2(3) coupled with the fact that this Court had restrained the respondents from passing a final order on the show cause notice and the matter having remained at a grinding halt for six years it would be necessary and expedient in the interest of justice that this matter should be first considered and examined by the competent administrative authority by passing fresh order after giving comprehensive show cause notice on both the issues arising out of application of Rule 13.4(2) and 12.2 and to consider all the pleas taken in this writ petition by both sides de novo including a re- visit of the positive stand of the department taken before this Court in Rajinder Singh's case.
Besides, the impugned orders P-11, P-13 and P-18 deserve to be set aside on the short ground of being ex parte in nature. The petitioner was not offered opportunity of hearing before passing the impugned orders adverse to the interest of the petitioner since they were passed in breach of principles of natural justice by non-speaking orders albeit on the issue of rule 13.4 of the PPR, 1934. The writ petition is allowed to the extent indicated. The matter is remanded for fresh orders. However, since the interim orders have continued to operate since 2007, they would continue to do so till the final order is passed in remand proceedings. The Director Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh CWP No.2768 of 2007 -12- General of Police, Haryana would be at liberty to issue fresh show cause notice to the petitioner and call upon him to file his reply within 21 days thereof after giving him opportunity to inspect the record and to make available to him such of the documents as he points to and requires in his defence. Only on supply of documents demanded after inspection which the petitioner thinks are relevant in his defence would be supplied to him in photocopy at his expense. On receiving the reply, the respondents would proceed to pass fresh speaking orders in accordance with law by associating the petitioner at the material stages.
(RAJIV NARAIN RAINA) 10.09.2013 JUDGE manju Mittal Manju 2013.09.19 15:30 I attest to the accuracy and integrity of this document Chandigarh