Rajasthan High Court - Jaipur
Ratan Singh Rajpurohit vs State Of Rajasthan And Ors. on 8 September, 2004
Equivalent citations: RLW2005(1)RAJ216, 2005(1)WLC171
Author: B. Prasad
Bench: B. Prasad
JUDGMENT B. Prasad, J.
1. The petitioner was recruited through Rajasthan Public Service Commission on the post of Sub-Inspector Police. The examinations were held for recruiting Sub Inspectors of Police for Rajasthan Police where selected candidates were to be assigned to any of the section according to merit i.e. (a) Armed Police (b) Rajasthan Armed Constabulary & (c) Mewar Bhil Corps. Petitioner's selection was communicated to him vide order dated 17.03.99 as Sub-Inspector of Police (Armed Police) and he was sent for training.
2. Subsequently, it was discovered that petitioner was not entitled to be assigned as per order dated 17.03.99. Another order dated 10.05.2000 was passed wherein, he was assigned to Mewar Bhil Corps instead of Armed Police because that was his entitlement In terms of the merit placement. When this change was effected, petitioner approached this Court. An order was passed whereby, this Court directed that petitioner should make a representation before the Director General of Police and he would pass appropriate orders on the representation of the petitioner. An appeal filed against this order was not considered favourably. The representation as was permitted by orders of the learned Single Judge dated 23.05.2000 was until then not preferred, therefore, he sought liberty and the same was granted by the Division Bench to prefer the representation after the order of the Division Bench. This may however be clarified here that at no place this was canvassed by the petitioner that in terms of merit, he was rightly assigned to Armed police. In fact, he could be assigned to Mewar Bhil Corps as per his merit. His seniors have also been assigned to Mewar Bhil Corps.
3. Petitioner has also placed on record an order dated 24.03.2002 whereby, he was confirmed as Sub Inspector of Police in Armed Police. The representation filed by the petitioner could not be favourably considered as the merit of the petitioner in the order of selection only gave him place as selected in Mewar Bhil Corps. Challenging the rejection of representation of the petitioner, present writ petition has been filed canvassing that a member of service cannot be transferred from one Branch to another, except in extra-ordinary circumstances and oh such conditions as may be imposed by the Director General cum Inspector General of Police with prior approval of the Government. It has been canvassed on behalf of the petitioner that in the present case before effecting the transfer of the petitioner, no such extra-ordinary circumstances have been pointed out by the Director General of Police nor there is any prior approval of the State Government to do so. The orders of transferring the petitioner from Armed police to Mewar Bhil Corps is arbitrary and against the provisions of Article 14 and 16 of Constitution of India. The petitioner had undertaken substantial training of Armed police, sending him to Mewar Bhil Corps would be illegal. This has visited the petitioner with adverse consequences and therefore, cannot be sustained.
4. Petitioner has further canvassed that once he having been assigned to Armed Police, sending him to Mewar Bhil Corps is violative of principle of promissory estopple and petitioner could not in any way be relegated to Mewar Bhil Corps.
5. Per contra, respondents have urged that the petitioner according to his merit could only be assigned to Mewar Bhil Corps because according to merit, he could not be assigned to Armed Police and there was no vacancy in Rajasthan Armed Constabulary. Once, he falls short in merit, if he is assigned Armed Police, then other persons who are above him in merit will also have to be assigned Armed police and that will violate the merit. The rule of merit cannot be violated in the face of an order issued under bonafide mistake. His position falls at Serial No. 285A from where he can only be assigned to Mewar Bhil Corps. Any mistake which has been committed as clerical mistake can be rectified at any stage. Petitioner's case is not that according to his merit he was entitled to be placed in Armed Police. When the respondents realised their mistake, they corrected it and therefore, he was assigned to Mewar Bhil Corps. It is not a case of transfer from one department to another because he did not belong to Armed Police. According to merit, he only belonged to Mewar Bhil Corps. It was only a case of correction of mistake. There cannot be any estopple in the matters where mistakes are committed. Mistake being bonafide, his merit position, only assigns him to Mewar Bhil Corps. It is not the case of the petitioner that any person junior to him has been sent to Armed police and he is assigned to Mewar Bhil Corps. So much so, the persons who are in merit senior to the petitioner have also been assigned to Mewar Bhil Corps and that being the position, no arbitrariness can be alleged by the petitioner.
6. Reiterating his written submissions, it has been submitted by the petitioner the Rule 4 of Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as 'the Rules of 1989') prescribes the manner in which a man can be transferred from one section to another. It delineates that in extra-ordinary circumstances alone, it should be done and such should be done only with the approval of the State Government. In the instant case, while the petitioner was assigned to Armed Police, he should not have been transferred to Mewar Bhil Corps without there existing any extra-ordinary circumstances and further, the approval of the State Government having not been taken in this regard, the order is unsustainable. Learned counsel also submits that he having undergone substantial part of training for the past, respondents are bound by the principle of promissory estopple. He places reliance on a decision of Surya Narain Yadav and Ors. v. Bihar State Electricity Board and Ors. (1985) 3 SCC 38, wherein, Hon'ble Supreme Court has held as under :-
"4. We have referred to these two documents out of several of them available on the record to show that the Board was aware of the position that these trainee engineers formed a special class and very peculiar circumstances warranted a definitely special treatment in regard to them. Yet it is unfortunate that a statutory body like the Board has failed to stand up to its representations made from time to time to a group of engineers who had spent years of their valuable life for qualifying themselves as engineers and who believing the representation of the board and acting upon the same continued to remain in the employment of the board as trainee engineers foregoing opportunities available to seek other employments and in the process have become age-barred for any public employment. This Court almost a score of years back in clear language indicated in Union of India v. Indo-Afghan Agencies."
7. Learned counsel for the respondents per contra has submitted that the case of the petitioner as regards the promissory estopple cannot be considered to be of such a nature so as to warrant the undoing of the provision whereby persons selected into service are to be assigned a section in order of merit. According to merit, the petitioner can only be assigned to Mewar Bhil Corps. He was wrongly assigned to Armed Police. That being the position, the mistake was corrected and in this background, the law relied upon by the learned counsel in the matter of Surya Narain Yadav (supra), will be of no consequence because the facts differ. No such representation was made by the respondents that he will be assigned to Armed Police only but assignment was to be in accordance with the merit and according to merit, petitioner knew he can only go to Mewar Bhil Corps and the mistake was corrected. Therefore, the question of promissory estopple does not arise in the matter.
8. Learned counsel for the State further submitted that Section 4 of the Rules of 1989 has no application. It is not a case for transfer as far as the petitioner is concerned. It is a case of correction of mistake. Petitioner has not been transferred from Armed Police to Mewar Bhil Corps. In fact, he belonged to Mewar Bhil Corps and he has been relegated to Mewar Bhil Corps. He was wrongly assigned to Armed Police. Thus, it was only a case of correction of mistake. Learned counsel for the State has placed reliance on a decision of this Court in Dayal Lal v. State of Rajasthan and Ors., RLW 2001(1) Raj. 559, wherein, this Court has held that bonafide mistakes of the respondents can always be corrected and such correction is permissible and the same having been done, nothing is required to be done in favour of the petitioner
9. After hearing both the parties and considering the case of the petitioner on merits what stands out boldly is that in terms of merit, petitioner could only be assigned to Mewar Bhil corps. Persons senior to him have also been assigned to Mewar Bhil Corps as they we re less meritorious than the other candidates who were selected and assigned to Armed Police section of Rajasthan Police. In these circumstances, respondents have communicated the petitioner that instead of Rajasthan Armed Police, he is assigned to Mewar Bhil Corps. His placing in the section to which he belonged can only be said to be correction of a mistake which was done in the circumstances which has not been explained by the respondents. The mistake has been committed not only for assignment of a section to petitioner but when the petitioner had already approached this Court and matter was sub-judiced, the confirmation order was also issued in favour of the petitioner. All this shows that the respondent department on whom lies the responsibility of keeping the vigil on the ills of the society has neglected to keep a watch on its own department. The slackness on the part of the respondents has multi-dimensional features. It is reflected in a reply filed in the related litigation wherein, a person more meritorious than the petitioner claimed that he should also be assigned to Armed Police as the person less meritorious than him i.e. the petitioner has been assigned to Rajasthan Armed Police. A reply has been filed by the respondents that petitioner has been assigned back to Mewar Bhil Corps without there being a verification of the correctness of the claim because there was a restraint order. This has resulted into asking for explanation from the respondent department. No convincing explanation has come and this situation requires this Court to pass an order that the Home Department of the State may institute an inquiry under the Director General of the department to inquire into the matter and make a report about the mistake committed by the respondent department. Firstly, an order of wrong assignment and secondly, passing of order of confirmation, when the matter had already gone to the Court. The order of confirmation is only passed after looking into the entire record of the probationer. The order passed for confirmation reflects that the records pertaining to the petitioner were perhaps not looked into. The aforesaid inquiry will cover this aspect also and make a report to this Court within three months and the erring officers will be identified and what steps are taken against them will also be intimated to this Court. For this purpose, the writ petition will continue to be pending before this Court.
10. As regards the contention of the petitioner that he was ordered to be transferred from Rajasthan Armed Police to Mewar Bhil Corps, suffice it to say that transfer is only made when an employee rightfully occupies the place from where he shifted. In the instant case, petitioner had been assigned to Armed Police wrongly. The foundation of the order in favour of the petitioner is a mistake. Mistakes when corrected cannot take the colour of transfer as conceived in Rule 4 of the Rules of 1989. Since the order of shifting the petitioner from Armed Police to Mewar Bhil Corps has no colour of transfer, requirement of adhering to the providence made in Rule 4 of the Rules of 1989 is not seen to be necessary to be followed. In this regard, the grievance of the petitioner that no reasons were recorded for transferring the petitioner from one section to another and also concurrence of the Government was not obtained, becomes only academic because this Court has not approved the argument of the learned counsel for the petitioner that it was a case of transfer from one section to another. In fact it was only a matter of correction of a mistake committed by the establishment of the respondent department for which this Court has already ordered necessary inquiry.
11. Learned counsel for the petitioner has further urged that the respondents are bound by the principles of promissory estopple. The basis of rule of estopple is equity. There was a mistake committed by the respondent department and any right cannot be canvassed to have been acquired by the petitioner by mistake of the respondent department, no promise was ever extended by the respondent department that the petitioner will be assigned to Armed police only. At the time of selection, when in merit, he stood low and his entitlement only came to the level where he could only be assigned to Mewar Bhil Corps, petitioner cannot claim that having been served with an order of assignment to Armed Police, he can claim that he belonged to that section only is not correct. Petitioner belonged where his merit gave him entitlement. Persons more meritorious than the petitioner have been assigned to Mewar Bhil Corps. As and when, mistake was noted, correction was made and the petitioner started litigating. Once, he started litigating, confirmation order was issued but then the principle of lis pendence would come into operation and any order of confirmation passed during the pendency of lis which was for the purposes of deciding the question of entitlement of the petitioner will not vest the petitioner with any consequences which are claimed by him. Law relied upon by the petitioner was decided in the field where, Engineers remained with the department in expectation of appointment and gave up other employment opportunities. In the instant case, petitioner's employment has not been disturbed. If he has been shifted from one section to another, his post remains the same i.e. Sub- Inspector. In that view of the matter, principles of promissory estopple cannot be invoked by the petitioner. A rule of equity cannot divest a legal entitlement and petitioner's entitlement was that of Mewar Bhil Corps.
12. It has also been canvassed on behalf of the petitioner that he has gained substantial part of training, therefore, he should not be assigned to Mewar Bhil Corps. Any amount of knowledge acquired by the petitioner cannot be expected to go waste. Petitioner is still with the department. Any knowledge acquired would always be useful. The training was imparted to the petitioner at the cost of respondents and therefore, no consequences ensued to the petitioner in the nature of civil consequence. That being the position, undertaking of the training also do not change the merit position of the petitioner and the petitioner has to serve where he has to go in terms of the merit. In that view of the matter, the argument advanced on behalf of the petitioner is not meritorious enough to sustain the petitioner in Armed police. According to his merit, he was required to be assigned to Mewar Bhil Corps only. His assignment to Armed police was a mistake. The mistake is difficult to be attributed as a clerical mistake because apart from an assignment order, a confirmation order was also issued. This shows some lack of vigil in the department for which this Court has ordered inquiry in the foregoing and for submission of report to this Court, the petition will be deemed to be pending.
13. In the aforesaid circumstances, petitioner should be assigned to Mewar Bhil Corps as has been given out by the respondent department. No relief can be granted to the petitioner. The writ petition having no force is hereby dismissed