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WITH AND CIVIL APPEAL NOS 7137-38 AND 7145-47 OF 1997 (Arising out of SLP (C) Nos. 2584, 4937, 3679, 3745 and 12685 of 1996) J U D G M E N T D.P. Wadhwa J.

Leave granted in all the special leave petitions. In this batch of appeals, it is the State of Punjab in the Police Department which is the appellant. There are in all 18 respondents. They were all enrolled as Constables in the Police Department and later deputed to the Criminal Investigation Department (CID) of the Punjab Police. During the course of their deputation, they earned promotions on ad hoc basis and some of the respondents reached the rank of ad hoc Sub-Inspectors. When they were sought to be repatriated to their parent departments, they were to go back as Constables or Head Constables if in the meanwhile on deputation they earned any promotion in their parent departments. They had served long years in the CID and the prospect of going back as Constables was not to their liking. They, therefore, approached the High Court of Punjab and Haryana by filing writ petitions which were allowed to an extent. The High Court did say that the order of repatriation of the respondents being legal could not be set aside as such. However, directions were issued that the cases of the respondents in their parent departments to considered for promotions on the relevant dates when person junior to them were promoted at different levels and, if necessary, even to relax the rules. In some of the cases two directions were given, namely, (1) if the respondents sought voluntary sought voluntary retirement from the posts they were holding in CID, the order of repatriation would not come in their cases for voluntary retirement be considered on the basis of the posts they were holding in CID; and (2) to determine the seniority of the respondents in their parent departments by giving them the benefit of service they rendered in CID and consequently to be considered for promotion with effect from the date the persons junior to them were promoted.

To understand the rival contentions, we shall consider the case of Inder Singh one of the respondents (CA Nos. 1293-1303 of 1996). He was enrolled in the Punjab Police on August 31, 1966 as Constable and on April 13, 1969 was sent on deputation to CID in the same rank. He was sought to be repatriated on September 15, 1990 while he was holding the rank of ad hoc Sub-Inspector. During this period of deputation, Inder Singh, by order dated February 19, 1985 was promoted as officiating Head-Constable after giving him exemption under the relevant rules which we will consider hereinafter. In the parent Department, he was holding the substantive rank of Head Constable. During the pendency of the writ petition in the High Court, we are told that there was stay of order of repatriation. Inder Singh was not, however, given any posting till the judgment was delivered by the High Court. On November 7, 1994, he was posted in the CID unit at Faridkot. However, this joining was subject to final decision of the present appeal. This Court at the time of the admission of the special leave petitions granted status quo which is continuing. The appellant has, therefore, contended that from the date of repatriation, Inder Singh remained absent uptil November 6, 1994. Taking into account this period of four years, Inder Singh was on deputation in CPD for over 28 years. We may note that the Department has not taken any action against Inder Singh for his alleged absence from the date of the order of repatriation till the order of this rejoining CID and his posting at Faridkot. The High Court in granting relief to respondents negatived the contention of the State that the respondents could not be promoted to higher posts in their parent departments without passing the various departmental examinations as per the relevant Rules. That was how the High Court dealt with these contentions first by allowing the writ petitions by the learned singh judge and then on appeal before the Division Bench filed by the State against the judgment of the learned single Judge. The High Court was of the view that in terms of sub-rule (3) of Rule 21.25 of the Punjab Police Rules, when an officer borne on the rolls of a district or range reached a place in seniority which would entitle him to be considered for substantive promotion if he were serving in the establishment to which he belonged permanently, he shall be informed and given the opportunity to return to the district police force. The Court said that admittedly, the writ petitioner, who was sent on deputation to the CID, was not so informed and given the opportunity to return to his parent Department when he was entitled to be considered for substantive promotion to the higher post. As held by the learned single Judge, the appellant who failed in its statutory duty to inform the petitioner when his juniors in the parent department were considered for promotion to the higher post, could not take advantage of its own wrong. The writ petitioner while on deputation to CID, Intelligence Department, was found fit and had been promoted as Sub-Inspector on 12th December, 1989, and was holding that post on the date when the order for the repatriation to his parent department was issued. The High Court said that in view of such peculiar facts, it would be a good ground for relaxing the rule for considering him for promotion to the higher post with effect from the date his immediate juniors were so promoted in accordance with the directions given by the learned Single Judge. The respondent in the writ petitions had prayed for writ of certiorarl for quashing the order of repatriation and a writ of mandamus directing the petitioner to absorb him in CID (Intelligence Department) where he had put in 23 years of service or directing the petitioner to determine the seniority of the respondent in his parent department after giving him benefit of service which he had rendered for 23 years in the CID and consequently to promote him from the date when his juniors were promoted.

iii) Whether the respondents are justified in repatriating the petitioner as constable to his parent department when his juniors have been promoted and are working on the post of sub Inspectors and Inspectors?

iv) Whether the order of repatriation is discriminatory and violative of Articles 14 and 16 of the Constitution of India? As to what relief the High Court granted we have noted above.

We find that the respondents have not challenged their repatriation to their respective districts on the rolls of which they are borne but what they contend is that they should hold the same position there as they were holding in CID. They submitted that while they were on deputation to CID their juniors have been promoted and now if they go back they have to work under them. These contentions do not appear to us to be correct. For one the respondents do not have any right to hold on the post which they were having in CID in their parent department and (2) they were holding the posts in CID only on and hoc basis. Appellants have brought on record a chart to show that even Constables who were senior to the respondents are still working as Constables as they could not qualify for further promotion in terms of the Rules mentioned above. In the case of Inder Singh no Constable junior to him has been promoted and there are 65 Constables who are senior to Inder Singh who are still working as Constables. Respondents have been contended that as per sub-rule (3) of Rule 21.25 they were never informed and given no opportunity of returning to their respective districts after they reached their places in seniority of their districts entitling them to be considered for substantive promotion. In the case of Inder Singh appellants have stated that old record of test for List-B was not traceable. However, Inder Singh has given his unwillingness to undergo Intermediate School in the term commencing with effect from April 1, 1990 to October 1, 1990. For promotion from Constable to Head Constable passing of B-1 test is a must. Inder Singh was not eligible to appear in the test for the first three years as he had not completed three years of service. Subsequently also he did not appear in any test held for the purpose. However, he was promoted on February 19, 1985 as officiating Head Constable by order of the Senior Superintendent of Police, Ludhiana from List C having been given exemption. Appellants have stated that since test is held in January every year circular/letters are issued to the organisations including then CID where their employees are working asking them to appear in the test. This test is held on the same date throughout the State. The Constables who are eager to compete are always on the alert to appear in the test as it is known to all the Constables that the test is being held. Appellants have also brought on record that apart from the fact that every Constable on deputation in CID would come to know of the test, the respondents were also individually informed except that in the case of one or two of the respondents records were not available to show that they had also been individually informed of the test being held. On the dates of holding of the test eligible candidates assemble at the prescribed place where the test is conducted. Several Constables serving in the CID on deputation appeared in B-1 test. So it is very well known to every Constable wherever he may be, the appellants submit. It would, therefore, appear to us that there cannot be any excuse that the candidates were not aware of the holding of the test.

Mr. Bagga appearing for more of the respondents submitted that the case of Amrit Kumar (CA 1297/95) was different. In his writ petition (No. 8979 of 1991) in the High Court it was mentioned in order dated June 12, 1991 that Amrit Kumar was working as Sub-Inspector in CID and was being repatriated as Head Constable to his parent department. The High Court ordered that he shall be repatriated as Sub-Inspector and it shall be open to the authorities to determine his seniority in the parent department in accordance with law. On clarification sought by the State the court order dated March 6, 1992 states that it shall be open to the Department to determine the seniority of Amrit Kumar and post him to the post he was entitled to and that the order dated June 12, 1991 would not confer any benefit on him. We, therefore, fail to see how this case is any different or that Amrit Kumar would be posted as Sub Inspector in his parent department on repatriation.