Punjab-Haryana High Court
Si Attar Singh No. 531/Bwn vs State Of Haryana And Others on 26 April, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 19849 of 2009 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 19849 of 2009 (O&M)
Date of Decision: 26.04.2012
SI Attar Singh No. 531/BWN .....PETITIONER
VERSUS
State of Haryana and others .....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT:Mr. S.N.Yadav, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana.
None for respondents No. 6 to 8.
AUGUSTINE GEORGE MASIH, J.
Petitioner has, through this writ petition, impugned the promotion order of respondents No. 6 to 8 as Inspectors dated 03.12.2008 (Annexure P-20) passed by the Inspector General of Police, Hisar Range, Hisar-respondent No. 3 as the petitioner claims to be senior to them. Petitioner has also impugned order dated 21.01.2006 (Annexure P-14), vide which petitioner has been transferred from District Police Hisar to Haryana Armed Police with a further challenge to the order dated 27.01.2006 (Annexure P-15) passed by the Inspector General of Police, Haryana Armed Police CWP No. 19849 of 2009 (O&M) 2 (hereinafter referred to as 'HAP'), Madhuban, vide which the dates of placement in the promotion List-C, promotion as Head Constable, Confirmation as Head Constable and placing him in the promotion List-D and promotion as ASI, have been changed to his detriment and his seniority has been fixed as per the Haryana Armed Police in violation of Rule 12.1 (4) of the Punjab Police Rules, 1934.
Counsel for the petitioner contends that once the petitioner has been absorbed in Hisar Range, his lien in HAP, Madhuban ceased and he has rightly been granted seniority and promotion in Hisar Range, which cannot now be disturbed by the respondents in purport of compliance with the order passed by this Court in CWP No. 934 of 1995 titled as Kanwar Singh vs. State of Haryana and others. Reliance has also been placed upon the instructions dated 22.09.2006 (Annexure P-22) to consolidate his contention that the cadre of constables enlisted with HAP/Commando, who had been transferred to District Unit permanently, be treated as such. He has further relied upon Rule 3.12 of the Punjab Civil Services Rules, Volume-I, Part-I, which deals with the lien and its termination as also upon a judgment of the Supreme Court in the case of T.R.Sharma vs. Prithvi Singh and another, AIR1976 Supreme Court 367 and a Division Bench judgment of this Court passed in CWP No. 7478 of 2008 titled as Narender Kumar vs. State of Haryana, decided on 18.08.2008. Support with regard to his this contention has also been sought from Rule 12.1 (4) of the Punjab Police Rules, 1934. Accordingly, it has been prayed that the impugned orders being violative of the statutory CWP No. 19849 of 2009 (O&M) 3 Rules governing the service deserves to be quashed. He has further prayed that by quashing the orders dated 21.01.2006 and 27.01.2006 (Annexures P-14 and P-15 respectively), he be promoted to the post of Inspector from the date his juniors have been promoted as Inspectors i.e. w.e.f. 03.12.2008.
On the other hand, counsel for the respondents submits that as per Rule 12.4 of the Punjab Police Rules, cadre of the Head Constables is to be borne on the district rolls. The petitioner was enlisted as a Constable in HAP/Madhuban and was brought on promotion List-C-I of Head Constables w.e.f. 18.09.1984 and confirmed as Head Constable on 31.01.1988 there. Thereafter, he was transferred to District Police, Gurgaon and from there to Bhiwani. Since the petitioner belongs to HAP Cadre/Madhuban as he was confirmed as a Head Constable there, even if he is transferred from HAP to the District Police, his lien would remain with HAP Range, Madhuban. The report submitted by the Deputy Inspector General, HAP, Madhuban dated 26.05.2003 was contrary to the statutory Rules and accordingly, the benefits conferred on the petitioner vide order dated 11.06.2003 (Annexures P-8 and P-9) order dated 12.06.2003 (Annexure P-10) and order dated 13.06.2003 (Annexure P11) being violative of the statutory Rules governing the service cannot be upheld and do not confer any right on the petitioner. Reliance has also been placed upon a Memo dated 15.12.1995 issued by the Director General of Police, Haryana (Annexure R-3), wherein while dealing with the similar situation as in the present case, it was clarified by the Director General of Police CWP No. 19849 of 2009 (O&M) 4 that Head Constables, who are confirmed in a particular Range under normal circumstances, if transferred, will be treated as on deputation and will retain their original seniority in the parent Range from where they were transferred and their promotion will be affected according to their seniority in their parent Range. It has further been contended that the order of his transfer and fixation of the seniority of the petitioner has been passed in compliance with the order passed by this Court in CWP No. 934 of 1995, Head Constable Kanwar Singh's case (supra) where petitioner was impleaded as respondent No. 6. Prayer has been made for dismissal of the writ petition.
I have heard the counsel for the parties and have gone through the records of the case.
Briefly stated, the facts are that the petitioner was enrolled as a Constable on 26.02.1980 in HAP, Madhuban. He passed his Lower School Course, his name was brought on List C-1 for promotion w.e.f. 18.09.1984 and was promoted as Head Constable in 2nd Battalion, HAP, Madhuban and thereafter, was confirmed as a Head Constable on 31.01.1988. He was transferred to District Police, Gurgaon along with some other Constables/ASIs vide order dated 28.02.1990 by the Deputy Inspector General Police, HAP, Madhuban. Thereafter he was transferred to District Police, Bhiwani, which is in Hisar Range and joined in District Bhiwani on 28.11.1990 and he was allotted Constable No. 531/BWN.
While he was serving as Head Constable in District Bhiwani, Hisar Range, Hisar, he was deputed to undergo Intermediate School Course and was brought on List-D vide order CWP No. 19849 of 2009 (O&M) 5 dated 10.09.1994. Thereafter, petitioner was transferred from District Bhiwani on promotion to District Hisar vide order dated 12.09.1994 as Assistant Sub-Inspector. Petitioner submitted a representation to the Inspector General of Police, Hisar for fixation of his seniority in Hisar Range. The Inspector General of Police sent a letter to the Deputy Inspector General of Police, HAP, Madhuban to seek the status of the petitioner. Thereafter, a reminder was sent. In response to this, Deputy Inspector General of Police, HAP, Madhuban, vide his communication dated 26.05.2003, submitted that the seniority of Haryana Armed Police and District Police is separate and the seniority is fixed by the Range and the seniority of the petitioner be fixed as per Hisar Range. His representation was, on the basis of this communication, accepted and his seniority was fixed in District Bhiwani, Hisar Range vide order dated 11.06.2003. He was confirmed on the post of Assistant Sub-Inspector w.e.f. 31.08.1998 and was further brought on List-E on 11.06.2003 and thereafter promoted as Sub-Inspector in District Bhiwani vide order dated 12.06.2003. The seniority of the petitioner as Sub-Inspector was also prepared and he was placed at Sr. No. 165 whereas respondents No. 5, 6 and 7 were placed at Sr. Nos. 167, 176 and 178 respectively in the seniority list. On this basis, it has been contended by the petitioner that he stood absorbed in District Bhiwani, Hisar Range, Hisar and, therefore, his lien in HAP, Madhuban, stood terminated.
One Head Constable Kanwar Singh No. 1/12 1st Battalion, HAP, who was on deputation with the Central Bureau of Investigation, CWP No. 19849 of 2009 (O&M) 6 New Delhi, filed CWP No. 934 of 1995 for deputing him to Intermediate School Course and claimed seniority over and above the petitioner. He had challenged Memo dated 23.06.1994/21.07.1994(Annexure P-17 herein), vide which 16 Head Constables including the petitioner and Head Constable Rajiv Kumar, who were transferred from HAP to District Police out of turn at various intervals by various authorities and their transfers were found to be irregular, were sought to be transferred back to HAP vide order dated 05.07.1991. Some of such transferred Head Constables approached this Court by filing writ petitions, in which the impugned order was stayed. On receipt of notice in the writ petition, the Director General of Police withdrew the order of transfer dated 07.05.1994. The said order was produced in this Court by the State counsel and the writ petition was disposed of as having been rendered infructuous. This matter was again reconsidered but in the light of the earlier withdrawal of the transfer orders and faring passing a contrary order to be a contempt of Court, the matter was allowed to lay at rest.
In this writ petition, apart from the petitioner, who was impleaded as respondent No. 6, another Head Constable Rajiv Kumar was also impleaded as respondent No. 7. Both these respondents were duly served in the writ petition but they preferred not to defend their case.
The case finally came up for hearing before this Court and the same was decided vide order dated 19.07.2004, wherein this CWP No. 19849 of 2009 (O&M) 7 Court held as follows:-
" Having heard the learned counsel for the parties at a considerable length, I am of the considered opinion that this petition deserves to be allowed. In the memo dated 23.06.1994/21.07.1994 the officials respondents have accepted that 16 Head Constables including respondents No. 6 and 7 were irregular and they were ordered to be transferred back to H.A.P. vide office order No. 7894/B-1 dated 5.7.1991. Once this factual position is accepted and conceded in Annexure P-3, then there was no warrant for the official respondents to withdraw the orders merely because a writ was filed in this Court and ad- interim stay was granted. There was no question of violating the orders of the Court once it is accepted that out of turn transfer of 16 Head Constables including respondents No. 6 and 7 was irregular and not in order. Merely because order dated 5.7.1991 was withdrawn before the Court would not provide a valid excuse as no directions were issued by this Court. I am further of the view that even otherwise if transfer from one cadre to another is to be made then the procedure consistent with Articles 14 and 16 (1) of the Constitution has to be followed. One possible way could have been to invite option in order of seniority equivalent to the number of constables sought to be transferred from HAP to other CWP No. 19849 of 2009 (O&M) 8 cadre. In the event of refusal of exercise the option by the petitioner he could have been validly deprived of his right vis-à-vis his juniors like respondent nos. 6 and 7 to be transferred outside the cadre. If the transfers are made from one cadre to another on request then seniority of the transferred employee is to be fixed at the bottom. Therefore, the order Annexure P-3 is violative of 14 and 16 is liable to quashed qua respondents No. 6 and 7.
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In view of the above, the petition is allowed and the memo dated 23.06.1994/21.07.1994 (Annexure P-3) is quashed. As a consequence the office order No. 7894/B- 1 dated 5.7.1991 is revived in respect of respondent nos. 6 and 7. The official respondents are directed to consider the petitioner for deputing him to Intermediate School Course in accordance with the rules and if the petitioner has already qualified the course then to grant him deemed date of promotion which has to be earlier to respondent nos. 6 and 7. The petitioner shall be entitled to all other consequential benefits with regard to salary increment and seniority etc. The needful shall be done within a period of three months from the date of receipt of copy of this order. The petitioner shall be entitled to his CWP No. 19849 of 2009 (O&M) 9 costs which are assessed as Rs. 5000/-."
In compliance with the order passed by this Court in the above writ petition, impugned order of transfer of the petitioner from District Police to HAP, Madhuban dated 21.01.2006 (Annexure P-14) was passed, which was followed by order dated 27.01.2006 (Annexure P-15), vide which seniority and the respective dates of enlistment and promotion to various posts were refixed in the parent cadre i.e. Haryana Armed Police. Petitioner did not prefer to challenge these orders earlier but now has approached this Court by laying challenge to these orders along with order dated 03.12.2008 (Annexure P-20), vide which persons, who were placed below him in the seniority list of Sub-Inspectors i.e. respondents No. 5 to 7, stand promoted to the rank of Inspectors.
In the light of the specific order passed by this Court in Kanwar Singh's case (supra), which has been reproduced above, all the arguments, which have been raised by the counsel for the petitioners, fall to the ground especially in the light of the quashing of Memo dated 23.06.1994/21.07.1994(Annexure P-17 herein) with a further observation that as a consequence of the quashing of this Memo, office order dated 05.07.1991 is revived in respect of respondents No. 5, 6 and 7 (respondent No. 6 is the petitioner in the present writ petition).
It is an admitted position that in Kanwar Singh's case (supra), petitioner was respondent No. 6 and was duly served but he chose not to defend his case. The findings thus, recorded by this Court are binding on him as the said order has not been challenged CWP No. 19849 of 2009 (O&M) 10 by him. In any case, the order passed by this Court in Kanwar Singh's case is dated 19.07.2004 and in compliance thereof, order of transfer of the petitioner dated 21.01.2006 (Annexure P-14) was passed and a further consequence thereof is order 27.01.2006 (Annexure P-15) re-fixing his seniority and dates of enlisting and promotion of the petitioner as Head Constable and Assistant Sub- Inspector. These orders were not challenged by the petitioner till the filing of the present writ petition i.e. 09.12.2009 with no explanation for the delayed approach of the petitioner to this Court for challenging these orders through the present writ petition. In any case, as these orders are in consequence to and in compliance with the order passed by this Court in Kanwar Singh's case (supra), which has attained finality in which the petitioner was a respondent, the challenge to these orders must fail. If that be so, the claim of the petitioner for promotion to the post of Inspector from the date his juniors in Hisar Range, as alleged by him, have been granted i.e. 03.12.2008, also cannot sustain.
That apart, Rule 12.1 of the Punjab Police Rules, 1934 reads as follows:-
"12.1 Authorities empowered to make appointments.-(1) Assistant Superintendents of Police are appointed by the Secretary of State for India, either in England or in India, according to the rules framed by him from time to time.
Deputy Superintendents of Police are appointed by the Provincial Government according to rules contained in CWP No. 19849 of 2009 (O&M) 11 Appendix 12.1.
The following table summarizes the directions given by the Provincial Government under clause (b) of sub- section (1) of Section 241 of the Government of India Act, 1935, in regard to the authorities competent to make appointments to the non-gazetted ranks. 1 2 3 Class of Government Servants Authority to whom the power of The extent of the delegation appointment is delegated Inspectors Deputy Inspectors-General of Full Powers subject to rules Police, Superintendent of Police, governing the conditions of services Railways Assistant Inspector- as defined in Police Rules.
General, Provincial Additional Police, (designated as Commandant, Provincial Additional Police), and the Assistant Inspector-General of Police (Traffic) Sergeants, Sub-Inspectors and Superintendent of Police and Assistant Sub-Inspectors Deputy Superintendent (Administrative), Government Railway Police and Assistant Superintendent, Government Railway Police.
Head Constables and Constables Superintendent of Police, and Deputy Superintendent, (Administrative), Government Railway Police, Assistant Superintendent, Government Railway Police, Deputy Superintendents Incharge of Railway Police Sub-Divisions, Senior Assistant Superintendent of Police, Lahore and Officers inpcharge, Recruits Training Centres, Deputy Superintendent of Police, Punjab Armed Police, Lahall and Spiti (2) All direct appointments to non-gazetted ranks above that of constable and all first appointments of civilian clerks shall be made by the appointing authority on the recommendations of Haryana Staff Selection Commission.
(3) The power to confirm the appointment of officers appointed on probation vests in the prescribed appointing authority.
(4) Inspectors shall be borne on a provincial roll and CWP No. 19849 of 2009 (O&M) 12 shall receive provincial constabulary numbers. Sergeants shall be borne on a separate provincial roll and shall receive separate provincial constabulary numbers.
Sub-Inspectors and Assistant Sub-Inspectors shall be borne on range rolls and shall receive range constabulary numbers.
Head Constables and constables in each district shall be borne on district rolls and shall receive district constabulary numbers.
(5) In matters relating to general conditions of service such as pay, pension, leave, joining time and travelling allowance, the subordinate ranks of the Police force of the State of Punjab shall be governed by the Punjab Civil Service Rules, for the time being in force, in so far as they are not inconsistent with the provisions contained in these rules."
A perusal of the above Rule and in particular sub rule (4) would show that Head Constable shall be borne on district rolls and shall receive district constabulary number. On the day when the petitioner was transferred from HAP, Madhuban to District Police, he was a confirmed Head Constable and his seniority was to be, therefore, maintained and borne in HAP, Madhuban and in the light of the instructions dated 15.12.1995 issued by the Director General of Police, Haryana (Annexure R-3), petitioner could not have been absorbed in Hisar Range. The relevant portion of the instructions CWP No. 19849 of 2009 (O&M) 13 reads as follows:-
" Number of complaints of irregularities and favoritism have been received and are continuing to be received in the matter of deputing Head Constables to the Intermediate School Course in particular. It has been seen that some Head Constables after confirmation in a particular Range manage to secure their transfer to another Range thereby gaining seniority over Head Constables who are otherwise senior to them in the Range, these Head Constables manage to get themselves transferred. Apart from causing imbalances and posing administrative problems, this practice has led to considerable criticism and has given rise to large number of avoidable litigation and petitions in the Courts. This practice has also been seriously viewed by the Hon'ble Courts. Such motivated transfer after confirmation in a particular Range is against the principles of natural justice and erode the confidence and faith of the subordinates in the leadership. In order to prevent recurrence of such situations arising out of such transfers after confirmation as Head Constables and to upheld the principles of fair play and justice, it is hereby directed that Head Constables, who are confirmed in a particular Range under normal circumstances will not repeat not be transferred to another Range to enable CWP No. 19849 of 2009 (O&M) 14 them to get undue benefit which may accrue to them on account of their seniors having not been promoted confirmed in the range to which they are transferred. If in any exceptional circumstances, transfer of the above nature becomes essential, the Head Constables so transferred will be treated as on deputation and will retain their original seniority in the parent Range from where transferred. Even, in the event of such Head Constables undergoing Intermediate School Course, their promotion will be affected according to their seniority in their parent Range."
The above instructions are in consonance with the statutory Rules and are just and equitable. That apart, instructions dated 22.09.2006 (Annexure P-22), on which the counsel for the petitioner has placed reliance upon for claiming his entitlement to permanent absorption on transfer from HAP to District Police is also misplaced as the said instructions would not be applicable to the claim of the petitioner. The relevant portion of the instructions reads as follows:-
"2. In compliance of the judgment dated 07.02.2006 of the Hon'ble High Court, the petitioners should have been transferred to their cadre in which they were initially appointed as Constable or confirmed as Head Constables after determining their cadre. The consent of the petitioners for their transfer was wrongly taken by you. The question of written consent would arise only if the CWP No. 19849 of 2009 (O&M) 15 department wanted to transfer them out of their cadre. As such action taken by you was not as per directions of the Hon'ble High Court. The cases of petitioners, for determination of their cadre, be decided, as per following criterion, in view of decision taken by the Hon'ble High Court in Megh Pal's case:-
1. The cadre of constables will be the district/unit in which they were initially appointed/enrolled. However, cadre of Constables enlisted in HAP/Commando will be the district/unit to which they were transferred permanently from HAP or Commando as per policy/standing order.
2. The cadre of the Constables promoted as Head Constable but not confirmed as such will be district/unit in which they were initially appointed/enrolled.
3. The cadre of Head Constables will be the district/unit in which they were confirmed as Head Constables.
4. The cadre of direct PASI or PSI will be the unit in which they joined on their first appointment."
The case of the petitioner would not fall under Clause 1 as the same deals with Constables rather his case would be covered CWP No. 19849 of 2009 (O&M) 16 by Clause-3 of the above reproduced instructions, according to which, cadre of the Head Constables will be the district/unit in which they were confirmed as Head Constables. Petitioner, therefore, has rightly been treated to be on deputation with Hisar Range and has been transferred back to HAP, Madhuban, which is his parent cadre. For this reason also, the claim made by the petitioner in this writ petition cannot be granted. The judgment relied upon by the counsel for the petitioner of the Supreme Court i.e. T.R.Sharma (supra) and Division Bench judgment of this Court in Narender Kumar (supra) would not be applicable to the case in hand as Rule 3.12 of the Punjab Civil Services Rules would not apply to the present case.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH)
April 26, 2012 JUDGE
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