Central Administrative Tribunal - Chandigarh
Amrao Singh S/O Sh. Jagir Singh vs Union Of India Through Secretary on 26 April, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION N0. 060/00697/2016
Chandigarh, this the 26thth day of April, 2017
CORAM:HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) &
HONBLE MR. UDAY KUMAR VARMA, MEMBER(A)
1. Amrao Singh S/o Sh. Jagir Singh, R/o House No. 4251, Sector 46-D, Union Territory, Chandigarh Police, Aged 48 years.
2. Dilsher Singh S/o Late Sh. Prem Singh, R/o House No. 12, Police Colony, Sector 17, Chandigarh, Union Territory, Chandigarh Police, Aged 52 years.
3. Gurmukh Singh S/o Sh. Bachan Singh, R/o House No. 4246, Sector 46-D, Chandigarh, Union Territory, Chandigarh Police, Aged 51 years.
4. Charanjit Singh, S/o Late Sh. Gurbachan Singh, R/o House No. 2699A, Sector 42-C, Chandigarh, Union Territory, Chandigarh Police.
.APPLICANTS
(Argued by: Shri Rohit Seth, Advocate)
VERSUS
1. Union of India through Secretary, Government of India, Ministry of Home Affairs, Central Secretariat, North Block, New Delhi.
2. Chandigarh Administration through its Administrator, Union Territory, Secretariat, Sector-9, Chandigarh.
3. Chandigarh Administration through its Advisor, Union Territory, Secretariat, Sector-9, Chandigarh.
4. Home Secretary, Chandigarh Administration, Union Territory, Secretariat, Sector 9, Chandigarh.
5. Inspector General of Police, Chandigarh Police, Headquarters, Additional Deluxe Building, Sector-9, Chandigarh.
6. Lakshmi Kanwat (ACP) W/o Sh. Subhash Chander r/o House No.3, Police Station, Krishna Nagar Compound, Delhi.
7. Dhirendra Pratap Singh (ACP), S/o Laloo Singh, R/o Q. No. 252-C,Type IV Rajouri Garden, MIG Flats, New Delhi.
8. Anand Kumar Mishra (ACP), S/o Mahendra Kumar Mishra, R/o Q. No. 12, Type IV, PS Rajender Nagar, Delhi.
. Respondents
(Argued by: Sh. K. K. Thakur, Advocate, for Respondent
No.1,6to8
Mr. Arvind Moudgil, Advocate, for Respondents
No.2to5)
ORDER (Oral)
JUSTICE M.S. SULLAR, MEMBER (J)
1. The challenge in this Original Application (OA), preferred by the applicants Amrao Singh S/o Sh. Jagir Singh and 3 others, Inspectors, is to the impugned order dated 29.7.2016 (Annexure A-1) whereby respondent No. 6 to 8, belonging to Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Police Service (for brevity DANIPS), have been transferred from New Delhi on the post of Deputy Superintendent of Police (DSPs) in the Chandigarh Police, Union Territory (UT), Chandigarh. They have also sought issuance of a direction to the respondents to consider them and other eligible Inspectors of U.T. Chandigarh Police, against the available vacancies of DSPs, in terms of Punjab Police Service Rules, 1959 (for short PPRs), as amended in the year 2010, with all the consequential benefits arising therefrom.
2. The epitome of the facts and material, which is necessary for the purpose of deciding the core controversy, involved in the instant OA, and emanating from the record, is that the applicants are presently working as Inspectors in Chandigarh Police. Their work and conduct is stated to be impeccable as no complaint or adverse remarks were ever conveyed to them. The next channel of promotion from the post of Inspector of Police, is to the posts of DSPs in U.T. It was alleged that there are 22 sanctioned posts of DSPs, out of which 21 belong to Executive Cadre. The UT has not framed any recruitment rules governing the posts of DSPs. The posts of DSPs of U.T. were never made part of the DANIPS cadre. All the conditions of service of employees of corresponding categories of the employees of the State of Punjab, were made applicable to the UT, Chandigarh, employees, as per notification dated 13.1.1992, published in the official gazette on 6.2.1992 (Annexure A-2), issued under Article 309 of the Constitution of India.
3. The case set up by the applicants, in brief, in so far as relevant, is that right from the day of its formation, Chandigarh Administration has promoted its officers from the posts of Inspectors to that of DSPs, as per the PPRs (Annexure A-3), as amended from time to time. As per the rules, recruitment to the posts of DSPs is to be made 80% by promotion from the rank of Inspectors and 20% by direct recruitment. There is only one cadre in Chandigarh Police. In this manner, out of 21 sanctioned posts of DSPs, as on date, 17 fall to the share of promotee officers, whereas 4 fall to the share of direct recruits. It was explained that as per seniority list dated 17.1.2013 (Annexure A-4), incumbents at Sr. No. 1, 3, 5, 6, 21, 22, 23 and 31 stand promoted as DSPs, incumbents at Sr. No. 2,3, 4, 7, 8, 18, 19 have retired and incumbents at Sr. No. 9, 11 and 20 are in extended service, hence cannot be promoted, incumbent at Sr. No. 17 died, incumbent at Sr. No. 10 cannot be promoted as on date, whereas the Inspectors at Sr. No. 24 onwards including the applicants, fall in zone of consideration against available vacant posts of DSPs.
4. The case of the applicants further proceeds that there is no provision for filling up the posts of DSPs, on deputation or transfer basis under the PPRS. However, due to non availability of eligible officers , the posts of DSPs in Chandigarh had been filled in on deputation or transfer basis. It was claimed that although there is no provision for appointment by way of deputation or transfer in the recruitment rules, yet there are instructions dated 20.8.1987 (Annexure A-5) of the Chandigarh Administration, which provide that Administration should prefer its own employees in the matter of promotion to the higher post, if they are otherwise eligible and suitable.
5. The U.T. Police Cadre Inspectors including the applicants are very much eligible and suitable for promotion to the posts of DSPs in U.T. but the respondents have illegally filled up the posts of DSPs in the U.T. from DANIPS officers. According to the applicants, that the post of DSPs in U.T. Police, which are governed by PPRs cannot legally be filled up by police officers of DANIPS cadre. Thus, they claim that they are entitled to be promoted to the posts of DSPs but respondents have ignored their eligible claim, in this regard.
6. Aggrieved thereby, the applicants have instituted the instant OA challenging the impugned order and action of the respondents, inter-alia, on the following grounds :-
(i) That the impugned order, Annexure A-1 and the action of the respondents, in not considering and granting promotion to the feeder cadre employees like applicants to the posts of DSP, despite holding the meeting of DPC and vacancies being there, despite they being fully eligible in terms of Rules and calling deputationists to fill up the posts is null, void, illegal, arbitrary and thus liable to be set aside.
(ii) That the posts in question are governed by the statutory recruitment rules known as Punjab Police Service Rules, 1959, as amended in 2010, under which there is no provision for filling in the post on deputation / transfer. As such, continuation of the deputationists / transferees despite availability of eligible Chandigarh Police Cadre Inspectors is not legally sustainable being in violation of rules of service and to protect accrued and acquired rights of the parent cadre employees.
(iii) That in addition to the Recruitment Rules, where there is no provision for transfer / deputation, there are judgment that if the departmental candidates are available, outsiders cannot be preferred and they have to consider their own employees.
(iv) That even otherwise, Chandigarh Administration has issued policy guidelines including judgments / orders passed by this Honble Tribunal in various court cases that U.T. cadre employees have to be preferred over and above outsiders. Thus, from this angle also, claim of the applicants merits acceptance.
(v) That the U.T Chandigarh has been dominated by the States of Punjab and Haryana as the officers holding key posts are from these states on deputation and pressure is always there to bring in the deputationists / transferees even dehors the rules and the cadre of U.T. employees have only been saved by the intervention of this Honble Tribunal. For instance the Principals of Government Colleges used to be deputationists, the Chief Engineer, U.T . Chandigarh was given to the U.T. cadre employee Sh. K. K. Jairath on intervention of this Honble Tribunal, post of District Education Officer, U.T. Chandigarh was given to the U.T. employees only after orders by this Tribunal. Similarly post of Superintending Engineer B&R Electrical have been filled up by UT. Cadre employees only after intervention of this Honble Tribunal. Thus, keeping in view the sequence of events and the intention of U.T. any order can be expected dehors the rules.
(vi) That even otherwise a transferee / deputationist retain status in his parent cadre and enjoy dual benefits. Rather on their appointment, employee next in seniority in parent department cadre are given promotions whereas in present case cadre of Inspectors of Chandigarh Police who have served the U.T. Chandigarh for decades while looking forward for a career in the force too despite rules providing for their promotion.
(vii) That the respondents cannot do something indirectly which is prohibited from doing directly.
(viii) That the consideration for promotion is a fundamental right and important aspect in ones career. Non-consideration of an eligible employee brings frustration, heart burning and demoralization which is neither in the interest of the Administration nor in the interest of the employees particularly when rules are in favour of the Chandigarh Police Employees. As such action of the respondents in resorting to pick and choose and not considering all eligible Inspectors of U.T. Police at one time is discriminatory, amounts to pick and choose and as such bad in law.
(ix) That action of the respondents whereby they have preferred private respondents to come to U. T. Police on deputation while terming the same as transfer just to over reach the order passed by this Tribunal is illegal and contemptuous.
(x) Any administrative instruction, circular or order cannot over ride the statutory provision of Recruitment Rules.
(xi) The respondents have taken a stand that until provision is made in Punjab Police Rules, 1859, UPSC cannot hold DPC for the post of DSP, as rules do not provide so and a such nine incumbents were promoted as such vide orders dated 4.1.2016 and 29.7.2016.
(xii) That action on the part of the respondents in passing impugned order to the extent challenged and not promoting the applicants being from feeder cadre is harsh, arbitrary, discriminatory and violative of their own policy guidelines and is not legally sustainable in the eyes of law.
7. Levelling a variety of allegations and narrating the sequence of events in detail in all, the applicants claim that they are entitled and eligible to be promoted to the post of DSPs, as per the Recruitment Rules and no Police Officers from DANIPS can legally be transferred as such to Chandigarh. On the strength of the aforesaid grounds, the applicants seek to quash the impugned order and action of the respondents in the manner indicated hereinabove.
8. On the contrary, the contesting respondents No. 1&2, have refuted the claim of the applicants and filed the reply, inter-alia, pleading certain preliminary objections of maintainability of the OA, cause of action and locus standi of the applicants. The applicants were stated to have mis-represented the facts and have not come to the Court with clean hands. However, on merits it was pleaded that the impugned order, Annexure A-1 was passed as per rules and law. The applicants are not entitled for any relief. It was indicated that the PPRs, as existed on 1.11.1966 are applicable by virtue of Re-organization Act, 1966 which govern the appointment / promotion to the rank of DSP in Chandigarh Police. The proposal for framing Chandigarh Police Rules to govern the appointment / promotion to the posts of DSPs in Chandigarh Police are under active consideration of the Home Department of Chandigarh Administration. The matter regarding inclusion of the posts of DSPs into DANIPS cadre is also pending consideration with the Ministry of Home Affairs (MHA), Government of India, New Delhi. According to the respondents, that notification dated 13.1.1992 (Annexure A-2) pertain to the condition of service and not condition of recruitment. At the same time, it was pleaded that so far as the recruitment rules to govern appointment to the posts of DSPs are concerned, the PPRs are applicable.
9. Sequelly, the main thrust of the case of the respondents is that although PPRs are applicable to the posts of DSPs in U.T. Chandigarh, but the matter with regard to framing the separate recruitment rules of Chandigarh Police and also to include the posts of DSPs in the cadre of DANIPS is (pending) / under active consideration of the U.T. Chandigarh and MHA, Government of India. Instead of reproducing the entire contents of the reply, and in order to avoid the repetition of the facts, suffice it to say that the contesting respondents have stoutly denied all other allegations and grounds contained in the OA, and prayed for its dismissal.
10. Controverting the pleadings of the reply filed by the respondents and reiterating the grounds contained in the OA, the applicants have filed the rejoinder.
11. At the very outset, it will not be out of place to mention here that the applicants Amrao Singh and Dilsher Singh and other two Inspectors, initially filed O.A.No. 060/00455/2016 claiming the same relief. The OA was disposed of with a direction to the Competent Authority to decide the representation dated 17/19th May, 2016 (Annexure A-7 Coolly) (therein) made by applicants by passing a speaking and reasoned order within a period of 3 months from the date of receipt of a certified copy of that order and to communicate the same to the applicants. The respondents were also directed that, till 15 days after passing of the reasoned order, they shall not take fresh deputationists, as DSPs, vide order dated 2.6.2016 (Annexure A-9), by this Tribunal.
12. Surprisingly enough, still the respondents have again appointed the DANIPS officers, on the posts of DSPs in U.T. Chandigarh, vide impugned order dated 29.7.2016 (Annexure A-1), which has now been challenged by the applicants in the instant OA, on the pointed grounds. That is how, we are seized of the matter.
13. Having heard the learned counsel for the parties, at quite some length, having gone through the records & legal provisions, with their valuable help and after considering the entire matter, we are of the firm view that the instant OA deserves to be accepted, in the manner, and for the reasons mentioned herein below.
14. Ex-facie, (reiterating the stand taken in the pleadings), the main arguments of the learned counsel for the respondents that although the posts of DSPs are regulated and governed by the statutory PPRs, but since the proposal for framing of Chandigarh Police Rules and the matter regarding inclusion of the posts of DSPs of U.T in the DANIPS cadre, is (pending) under active consideration with the Ministry of Home Affairs, so the respondents have rightly posted the DANIPS officers, as DSPs in U.T. Chandigarh Police, by means of the impugned order, Annexure A-1, are not only devoid of merits but mis-placed as well and deserves to be repelled, for more than one (following) reasons.
15. At the first instance, what cannot possibly be disputed here is that the UT Chandigarh Came into existence under section 4 of the Punjab Reorganization Act, 1966, comprising of the States of Chandigarh and territories specified in IInd Schedule thereto w.e.f. November, 1, 1966. Section 84 of the Punjab States' Reorganisation Act, 1966 postulates that The Central Government may give such directions to the State Governments of Punjab and Haryana and to the Administrators of the Union Territories of Chandigarh, as may appear to it to be necessary, for the purpose of giving effect to the provisions of this Part and the State Governments and the Administrators shall comply with such directions. These relevant provisions were interpreted by the Honble Supreme Court in the case of Swaran Lata Vs. Union of India & Others, 1989 (1) SLR 710, wherein it was held that the directions that the Central Government may issue, were only for the limited purpose i.e. for the implementation of the scheme for the reorganization of services. The directions issued by the Central Government were only for the limited purpose of implementing the scheme for the reorganisation of services. When the process relating to integration of services as envisaged by the supplemental, incidental or consequential provisions for reorganisation of services under a law was completed an incidental provision like section 84 necessarily ceases to have effect.
16. Thereafter, it is the exclusive power of the Union and the State to deal with their respective services, either in exercise of their legislative functions or rules making powers under article 309 of the Constitution or in the absence of any law or rules, in exercise of their executive powers under article 73 and article 162 of the Constitution of India which, is co-extensive with their legislative power to regulate recruitment and conditions of service. It was held that after the process of integration of service is finalized, in conformity with any law made by the Parliament, referred to in Articles 2 or 3 of the Constitution, the supplemental, incidental and consequential provisions contained therein, which, by reason of Article 4 have the effect to divest the newly formed State of its power to deal with its services, would no longer operate. Such power is only kept under suspended animation till the process of re- organization of services is not completed. Once the integration of services in a newly formed State is finalized, there is no reason for a transitory, consequential or incidental provision like s. 84 of the Act to operate in perpetuity. It was noticed therein that on November 1, 1966 (appointed date), the President of India issued an order, in exercise of the powers conferred by the proviso to Article 309 of the Constitution directing that the Administrator of the Union territory of Chandigarh shall exercise the power to make rules in regard to the following matters namely:
(i) the method of recruitment to the Central Civil Services and posts (Class II, Class III and Class IV) under his administrative control in connection with the affairs of the Union territory of Chandigarh;
(ii) the qualifications necessary for appointment to such services and posts; and
(iii)the conditions of service of persons appointed to such services and posts for the purpose of probation; confirmation, seniority and promotion:
Provided that the power conferred by this notification shall not be exercisable in respect of such services and posts as are borne on a cadre common to two or more Union territories."
17. Sequelly, Article 154 of the Constitution of India postulates that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 239 of the Constitution of India further provides that save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify and notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. It is not a matter of dispute that The Governor of Punjab, was appointed as Administrator of UT Chandigarh.
18. Similarly, Article 309 of the Constitution of India, inter-alia, deals with the framing of the recruitment and conditions of service rules of persons serving the Union or a State as the case may be. The proviso to this article posits that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
19. As a consequences thereof, in exercise of the powers under article 309 of the Constitution, the President formulated the conditions of service of U.T. of Chandigarh Employees Rules, 1992 which came into force w.e.f. 1.4.1991. Rule 2 postulates that the condition of service of persons appointed to the Central Civil Services and posts in Group A, B, C and D under the administrative control of the Administrator of U.T. Chandigarh, shall, subject to any other provisions, made by the President in this behalf, be same as the condition of service of persons appointed to the corresponding posts in the Punjab Civil services and shall be governed by the same rules and orders as are for the time being applicable to the latter category of the persons. Even it was also decided therein to grant the Punjab Pay Scales to the employees of the Union Territory Administration with effect from the 1st April, 1991 and also they should be governed by the service conditions of the corresponding employees of Government of Punjab.
20. A co-joint and meaningful reading of the aforesaid provisions, to us, would reveal that the service conditions of the U.T. employees are, the same, as are for the corresponding categories of employees in the State of Punjab. That means the statutory PPRs (Annexure A-3), framed under Article 309 of the Constitution of India were, mutatis mutandis, made applicable and the posts of DSPs specified in Appendix A are regulated and governed by the PPRs. Rule 6 provides that the recruitment to the service (DSPs) shall be made 80% by promotion from the rank of Inspector and 20% by direct appointment by the Government. According to rule 6 (2), appointment by promotion to the post of DSP shall be made from the Inspectors, brought on List G which will be list of officers considered fit for promotion to the rank of DSP promotion by the Government, in consultation with the Commission. The names included in the list prepared at one time shall be appointed according to their inter-se seniority and the direct appointment to the service shall be made on the basis of the competitive examination conducted by the Commission. Indeed, there is no implicit or explicit provision in PPRs for appointment to the posts of DSPs in U.T. Chandigarh, by way of transfer on deputation, as has been done in the instant case, by the respondents.
21. Meaning thereby, the post of DSPs in question is governed and regulated by the statutory recruitment PPRs rules framed under article 309 of the Constitution of India and respondents can legally make appointments to the posts of DSPs in U.T. Chandigarh, as per those statutory rules only, and not otherwise. However, they have illegally appointed DANIPS officers as DSPs in U.T. Police, vide impugned order, Annexure A-1, without any legal authority.
22. Likewise, the main grounds pressed into service by the respondents, in an unsuccessful attempt, to substantiate the validity of the impugned transfer order, Annexure A-1, are the proceedings dated 30.8.2012 (Annexure R-1) of a Committee consisting of Commissioner of Police, Delhi, Advisor to Administrator, Chandigarh, Home Secretary, Chandigarh and IGP, Chandigarh, in which the following decision was taken :-
On the issue of re-structuring, following decisions were taken in the meeting :-
1. The DSP cadre of Chandigarh has to be merged with DANIPS and to that extent UT administration may consider taking necessary steps including draft notification to be sent to MHA for approval.
2. It was told by UT Administration that presently direct recruitment is done at the ASI level. It was considered that instead of this, direct recruitment should be resorted to at the SI level. And the same pattern should be implemented across all the UTs.
3. The cadre of Sub-Inspector and Inspector should be made transferable from one UT to another and to enable this, the Police (Condition of Service) Rules of concerned UTs including Delhi must be amended.
4. It was also decided that since presently there are 7 vacancies of DSPs in Chandigarh Police. We may consider seeking willingness from DANIPS officers posted in Delhi to be sent to Chandigarh Police on deputation and this deputation will be treated as a deputation to outlying segments in terms of policy. CP, Delhi may be requested to send a panel of such officers to MHA.
23. A perusal of the proceedings (Annexure R-1) would reveal that the cadre of DSPs, Chandigarh was discussed to be merged with DANIPS and in that regard UT Chandigarh was required to consider taking necessary steps including draft notification to be sent to the MHA. Similarly, the cadre of Inspectors was discussed to be made transferable from one UT to another and to enable this, the Police (Condition of Service) Rules of concerned UTs, including Delhi must be amended. Even the proceedings (Annexure R-1), have neither been approved by the Competent Authority nor any such rules, have seen the light of the day, till today.
24. Moreover, during the course of arguments, the learned counsel for the respondents has placed on record copy of a letter dated 14.12.2016, written by Home Department of Chandigarh Administration, informing the Joint Secretary, Government of India, Home Affairs, New Delhi, that the PPRs being applicable in Chandigarh Police, and as such, necessary amendment is required to be made therein. The Chandigarh Administration is going to frame Chandigarh Police Service Rules for the posts of DSPs, as per the criteria mentioned therein.
25. Be that as it may, the fact remains is that the relevant rules have not yet been framed or notified, to enable the DANIPS officers to be posted on the posts of DSPs in U.T. Chandigarh. The posts of DSPs are still governed by PPRs and there is no provision therein for appointment to the posts of DSPs in U.T. Chandigarh, by way of transfer on deputation, in any manner. The DANIPS Officers, who are foreigner and belong to entirely different cadre, cannot legally be permitted to intrude/enter into the cadre of U.T. Chandigarh, without any legal authority. Otherwise also, it will amount to snatching the rights of the promotion of the applicants, without any legal basis. The mere fact that the matter with regard to the amendment of the indicated rules is (pending) under active consideration of the relevant authorities, is not a ground, much less cogent, to authorize the respondents to abruptly appoint DANIPS officers on the posts of DSPs of UT Chandigarh Police, against the statutory rules (Annexure A-3). Thus, the impugned order dated 29.7.2016 (Annexure A-1), based on ineffective executive decision, Annexure R-1, which has not even been approved by the Competent Authority, relatable to the transfers of the DANIPS officers on the posts of DSPs in UT, Chandigarh is not only arbitrary, illegal but without jurisdiction, as well.
26. Therefore, the impugned order, Annexure A-1), cannot legally be sustained, in view of the ratio of law laid down by the Honble Apex Court in the case of S.S. Sodhi Vs. The State of Punjab & Others, 1990 (2) SCC 694, wherein it was held that where more than one sources are open for making appointment and rules specify order of preference, appointing authority must consider the candidates for appointment in accordance with that order only. Similar view was reiterated in the case of Jai Ram Sharma Versus Jammu Development Authority, JT 1996 (5) SC 369, wherein it was observed that when appellant was a regular candidate as Office Superintendent, he was entitled to be considered in preference to the deputationist, who was not a member of the service, as on that date and the promotion by way of deputation was held to be illegal and an arm twist of the Organization.
27. This is not the end of the matter. Besides, the statutory PPRS framed under article 309 of the Constitution of India (Annexure A-3), the respondents have issued instructions dated 20.8.1987 (Annexure A-5), further supplemented by instructions (Annexure A-6) which emphasize that UT Chandigarh has decided to give promotion to the suitable UT employees, in preference to persons on deputation from other States and also to consider their claim for promotion, as and when they are found suitable and eligible. Annexure A-5, reads as under :-
I am directed to invite your attention to the policy instructions circulated vide letter No. 6441-IH(5)-74/48-50 dated 1.1.1975 and No. IH (50-80/12042-44 dated 15.5.80 according to which it was decided to give promotions to suitable UT employees in preference to taking persons on deputation from other states and also to consider the claims for promotion of U.T. employees and as and when they were found suitable and eligible. The Central Administrative Tribunal have recently pronounced in certain cases that in a Welfare State it is the duty of the model employer that the interest of the employees be watched and posts filled by eligible and suitable UT employees when available. Accordingly, while considering appointments to the posts and services under the Chandigarh Administration, you are requested to strictly follow the policy of this Administration for giving preference to the UT employees in the matter of promotion and if UT employees in the feedering cadres are eligible for promotion, they may be considered as and when a vacancy occurs or new posts are created.
28. In this manner, on the one hand, the UT Administration is stressing upon and directing the appropriate authorities to strictly follow the policy to give preference to UT employees in the matter of promotion, as per Annexure A-5, and on the other hand, respondents are appointing DANIPS officers to the post of DSPs in UT Police, without any legal authority. They cannot be permitted to blow hot and cold in the same breath. On the contrary, they are estopped from bye-passing the statutory provisions of PPRs (Annexure A-3) framed under article 309 of the Constitution of India and instructions, Annexures A-5 and A-6, in any manner, in the garb of in-operative proceedings (Annexure R-1). This matter is no more res-integra and is now well settled.
29. An identical question came to be decided in a line of judgments by the Honble Apex Court in the cases of B.N. Nagrajan V. State of Mysore, AIR 1966 SC 1942, Sant Ram Sharma v. State of Rajasthan & Others, AIR 1967 SC 1910, B.N. Nagarajan & Others Vs. State of Karnataka and Others, AIR 1979 SC 1676; P.D. Agrawal and Others Vs. State of U.P. and Others, (1987) 3 SCC 622, State of Maharasht6ra v. Jagannath Achyut Karandikar, AIR 1989 SC 1133, Paluru Ramkrishananiah and ors. vs. Union of India etc. AIR 1990 SC 166 and Union of India v. Rakesh Kumar, AIR 2001 SC 1877, wherein having considered the statutory rules framed under Article 309 of the Constitution of India, governing a particular field, instructions (as in the present case), it was held that the executive instructions, issued in that context, cannot over ride the statutory provisions and the rules would have preference / priority over instructions, if both come into conflict with each other.
30. Again Honble Supreme Court in Ram Ganesh Tripathi v. State of U.P., AIR 1997 SC 1446, has considered a similar controversy and held that any executive instruction/order which runs counter to or is inconsistent with the statutory rules cannot be enforced, rather deserves to be quashed as having no force of law.
31. Likewise, the respondents have also tried to project that the transfer of the DANIPS officers on the posts of DSPs in Chandigarh is in public interest, to improve the administrative efficiency and to curb the malpractice. It has been urged on their behalf that many of the police officers remain posted in a substantive post for a long time and develop vested interests which is required to be checked by the outside officers. Possibly, prima facie no one can dispute or doubt the indicated noble intention of the respondents in this regard. But at the same time, no one can lose sight of the fact that there must be some legal power / mechanism to shift/replace such employees by posting DANIPS officers on the posts of DSPs in UT Chandigarh. Such transfer can only be effected under a legally framed statutory policy falling within the four corners of the law and has to be legally sustainable, which is totally lacking in the present case. The alleged proceedings (Annexure R-1) pales into insignificance, as these were not approved by the Competent Authority and has no legal sanctity. The impugned proceedings, Annexure R-1 and transfer order, Annexure A-1 relatable to the appointment to the post of DSPs in U.T. Chandigarh do not pass the test of legality and hence not sustainable as such.
32. Therefore, if the indicated peculiar facts and special circumstances and legal provisions are put together, then to our mind, the conclusion is inescapable and irresistible that the respondents have not derived any legal power from any constitutional or statutory provision to transfer DANIPS officers on the posts of DSPs in U.T. Chandigarh, vide impugned order, Annexure A-1, which has no legal force, is in-operative and cannot legally be implemented. Hence, the contrary arguments of learned counsel for the respondents, stricto sensu, deserve to be and are hereby repelled. On the contrary, the ratio of law laid down by the Honble Apex Court, in the indicated judgments, is mutatis mutandis, applicable to the instant controversy and is a complete answer to the problem in hand. In case such transfer orders, based on inoperative proceedings, are allowed to sustain, then it will inculcate and perpetuate grave injustice to the applicants and other similarly situated eligible Inspectors as they have already and would be deprived of their legitimate right and expectation of promotion to the posts of DSPs, which is not legally permissible. Thus, the impugned order, Annexure A-1 and any such subsequent orders of transfers in so far as these relate to the Chandigarh, in this regard, deserve to be set aside, being illegal and inoperative.
33. No other point worth consideration has either been urged or pressed by the learned counsel for the parties.
34. In the light of the indicated reasons, the instant OA is accepted. As consequences thereof, order dated 29.7.2016 (Annexure A-1) and any other subsequent transfer order relatable to the appointment of DANIPS officers to the posts of DSPs in U.T. Chandigarh, are hereby set aside. At the same time, the respondents are also directed to consider the case of the applicants and other similarly situated persons for promotion to the next post of DSPs, if they are otherwise found eligible, as contemplated under PPRs, within a period of two months from the date of receipt of a certified copy of this order. However, the parties are left to bear their own costs.
(UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 26.04.2017
HC*
1
(OA No. 060/00697/2016)