JUDGEMENT Honble Mr. V.K. Bhatnagar member (Adm.) - 1. The case of the applicant as pleaded in this original application is that he was appointed as a Constable and joined the HP. Police Department oh April 21, 1980 to work on the executive side. Later he was approved to work in the Executive Clerical Cadre vide order No. PHQ No. Estt. 1 (6) ECC-21/89-24486 dated March16, 1990 and has been working as clerk (extra hand) in the said section in the office of respondent No. 3 since that date. The applicant has been awarded several merit certificates has been placed as Annexures-A/2 to A./7. However, the applicant received an order no. 45403-8 dated December 26,. 1996 issued by respondent No. 3 adjusting the applicant in Police Line Kaithu. A copy of this order is annexed as Annexure- A/8. The applicant has been transferred by these orders from the office of respondent No. 3 where he was performing Clerical duties in Police Line Kaithu. It has been alleged that nature of duties in Police Line Kaithu is entirely different than those of the previous post. Applicant made a representation dated January 1, 1997 against these orders. He was informed by memo dated February 6, 1997 from Deputy Inspector General of Police (Southern Range) that the representation of the applicant had been considered and rejected. The applicant was also given a copy of Annexure -AA10 which is a memo dated January 28, 1997 from Director General of Police to Dy. Inspector General of Police (Southern Range) informing him that the applicant who was approved for executive clerical Cadre as (extra hand) Accounts branch vide order dated March 16, 1990, had been reverted to District Executive Force in view of a report submitted by I Superintend of Police District. The grievance of the applicant is that he was never interned about the report which was submitted by Superintendent of Police to Director General of Police. On receipt of Annexure-A/11 the applicant made another representation to Director General of Police on March 20, 1997 as per Annexure-A/12 but he received no response from the respondents on this representation. The present original application has been filed with the following prayer: (i) That the respondents be directed to furnish the applicant a copy of report sent by respondent No. 3 vide his letter no. 9323/Spl. The present original application has been filed with the following prayer: (i) That the respondents be directed to furnish the applicant a copy of report sent by respondent No. 3 vide his letter no. 9323/Spl. Dated December 27, 1996 on the basis of which the applicant has been removed/decadrised, so that he may be aware of the allegations, if any against him; (ii) Respondents be directed to provide the applicant with a reasonable opportunity of hearing so that he can offer an explanation about the charges leveled against him in the said communication, before any action detrimental to his career such as removal/decadrisation is taken by the respondents; (iii) Respondents be directed to allow the applicant to continue working as a clerk (Extra hand) in Accounts Section of respondent No. 3 where he had been working since 1990; (iv) Annexure-A/8 and A/10 may be quashed in the interest of justice; (v) That the respondents be directed to regularise the applicant in t\)e Executive Clerical Cadre (ECC) since there is a vacancy and he is the senior most official for regularisation. 2. This original application has however, been opposed by the respondents in their reply filed on August 20, 1997. It has been admitted by the respondents that the applicant had been approved as Extra hand in the Executive Clerical Cadre (Accounts branch) from the year 1990 but he could not be finally absorbed due to non-availability of vacancies. It has also been stated in the reply that there are no Recruitment & promotion Rules for Executive Clerical Cadre and as per practice, applications are invited from the General Constabulary and personnel having aptitude for the clerical cadre. They are approved as Extra hand and put on duty in the respective Branches so that they may acquire efficiency. That it has been specifically laid down in the instructions that in case any constable does not take interest to learn the work, on receipt of detailed report, he can be considered for retention/ removal from the Executive clerical cadre. That the applicant had not been found suitable for Executive clerical cadre and had been censured twice during this period. That the applicant while posted as Bill clerk (medical Reimbursement) had tempered with a medical bill and FIR No. 236/96 was registered against the applicant and he was arrested during the course of investigation. That the applicant had not been found suitable for Executive clerical cadre and had been censured twice during this period. That the applicant while posted as Bill clerk (medical Reimbursement) had tempered with a medical bill and FIR No. 236/96 was registered against the applicant and he was arrested during the course of investigation. That the applicant also remained willfully absent during November and December 1996 without permission of the Competent Authority and no leave was due to the applicant at that time. Keeping in view the registration of a case and indiciplined behaviour/inefficiency. Respondent No. 2 3 recommended the case of the applicant to respondent No 2 for removal/decadrisation of the applicant from the Executive Clerical Cadre. On the basis of this report, the applicant was reverted to District Executive Force vide letter dated January 29, 1997 as per Annexure-R/II. 3. On the basis of above reply it has been pleaded that the action of the Respondent State is legal and just needs to be upheld as the working of the applicant was found unsatisfactory. 4. In rejoinder the applicant has reiterated most of the allegations made in the original application. Additionally, the applicant has annexed with this rejoinder a copy of standing order No. P. II-7-ECC/96- 41201 dated December 23, 1996 issued by the Director General of Police, as Annexure A-13. This standing order is about induction, promotion and confirmation of the Executive Clerical Staff. It has been pleaded that the applicant deserves to be confirmed on the basis of these Standing Orders in the Executive Clerical Cadre. The applicant has also attached Annexure-A/14 and A/15 with the rejoinder which are commendation certificates issued on March 31, 2001 and September 10,2001 respectively. Another annexure is A/17 which a copy of the order passed by Judicial magistrate in the case registered against the applicant discharging the applicant on the recommendations of the Asstt. Public Prosecutor. Another Annexure is A/16 written by respondent No. 3 to Dy. Inspector General of Police (Southern Range) on May 21, 2001 requesting him to grant the applicant seniority for his placement in the rank of LHC/HHC from respective effect with his counter parts. It is also mentioned in this annexure that the criminal case registered against the applicant had been decided and the applicant had been discharged. On the basis of these documents, it has been pleaded that original application may be allowed. 5. It is also mentioned in this annexure that the criminal case registered against the applicant had been decided and the applicant had been discharged. On the basis of these documents, it has been pleaded that original application may be allowed. 5. No sur-rejoinder has been filed to this rejoinder. 6. The learned counsel for the parties have been heard and pleadings have been gone into. 7. The learned counsel for the applicant has argued that the sole ground for decadrisation of the applicant was registration of FIR against him and the alleged act of indiscipline as reported in the reply of the respondents. The learned counsel for the applicant referring to the rejoinder filed has specifically submitted that the Applicant has earned a number of commendation certificates. The censure referred to in the reply was made only in respect of general parade and not with regard to the clerical work which the applicant was discharging in the Executive Clerical Cadre. It has been argued that in fact the applicant has earned a number of commendation certificates as per Annexures-A/2 to A/7. It has also been stated that it is not correct that there was no leave in the leave account of the applicant. The applicant had over 200 days of leave to his credit when he was reverted for executive duties. It has also been stated that the action taken against the applicant by reverting him for executive duties as per Annexure-A/8 was in the nature of punishment awarded to the applicant without following the principle of natural justice and without even apprising him of the allegations made in the confidential letter dated December 26, 1996 by respondent No 3 to respondent No. 2. In this regard the learned counsel for the applicant has referred to number of cases decided by the Honble Supreme Court/High Court, it has also been pleaded that the cadre of an official cannot be changed without his consent. In this regard the learned counsel for the applicant has referred to number of cases decided by the Honble Supreme Court/High Court, it has also been pleaded that the cadre of an official cannot be changed without his consent. In this behalf following case law has been referred: (i) Prem Parveen "versus union of India and ors 1973 (2) SLR 659; (ii) V.L.N. Rao versus Director General AIR, New Delhi 1587 (4) SLJ (CAT) 583; (iii) Hussain Sasan Saheb Kaladgi versus State of Maharashtra (1988) 4 SCC 168; (iv) Raj Duggal versus Ramesh Kumar Bansal 1991 Supp (1) SCC 191; (v) Kumaon Mandal Vikas Nigam Ltd. versus Girja Shankar pant and Others (2000) 1 SCC 182; 8.The learned Addl. Advocate General has restricted his arguments to the reply already filed by the respondents. 9. I have gone through the facts of the case, the pleadings, Annexures and the case law. It has been stated by respondents in, reply filed on August 20, 1997 that there are no Recruitment & Promotion Rules for Executive Clerical Cadre and as per practice applications were being invited from General Constabulary for the Executive Clerical Cadre and depending upon their aptitude, the Constables working in the Executive Cadre are being approved as Extra hand in the Executive Clerical Cadre and put in respective branches so that they may acquire efficiency. Annexure-A/13 however, is a copy of the standing order issued on December 23, 1996 on the subject of induction, promotion and confirmation of the Executive Clerical Staff and Annexure -A/8 by which the applicant was deputed from the Executive Clerical Cadre to Police Line Kaithu was issued on December 26, 1996. It shows that the Standing order as per Annexure-A/3 dated December 23, 1996 had come into operation on December 26, 1996 when Annexure-A/8 had been issued. This Standing order deals with various service matters of Executive Clerical Staff such as method of injunction, eligibility, preparation of approved list, absorption in the Executive Clerical Cadre, promotion from one rank to another and confirmation but does not deal with the subject of decadrisation. This Standing order deals with various service matters of Executive Clerical Staff such as method of injunction, eligibility, preparation of approved list, absorption in the Executive Clerical Cadre, promotion from one rank to another and confirmation but does not deal with the subject of decadrisation. Regarding confirmation, it has been mentioned in para 13 that the police officials of the Executive Clerical Staff will be considered, eligible for confirmation after putting in a minimum two years of service including the period of officiation in their respective ranks on the recommendations of the Departmental Promotion Committee to be constituted by the Director General of Police and on that basis, the learned counsel for the applicant has pleaded that the applicant is entitled for consideration for confirmation, being the senior most in his cadre. 10. The pleadings show that the applicant has been" reverted mainly on the ground that a criminal case had been registered against the applicant for tempering with a medical reimbursement bill. Annexure-A/17 however, shows that learned Judicial Magistrate has held in his judgment that there was no motive or intention on the part of the accused as far as the amounts, after fabricating the figure is concerned. After examining the material available on record in light of the averments made by the learned Assttt. Public Prosecutor in his application under Section 321 C.R.P.C, the Judicial Magistrate discharged the applicant. As regards punishment of censure, the applicant has stated in his rejoinder that this was not on account of any lapse as an Extra hand in the executive clerical cadre but on account of his performance in the parade. This statement has not been rebutted as no sur-rejoinder has been filed and even during the course of arguments. Therefore, it is established from the record that the | transfer of the applicant from Executive Clerical Cadre to Executive I duties to Police Line Kaithu as per Annexure -A/8 had been made on certain grounds which do not exist. Even otherwise, the applicant was not apprised of the material against him and was given no opportunity to explain the same. 11. Of the authorities cited by the learned counsel only two authorities are relevant. Even otherwise, the applicant was not apprised of the material against him and was given no opportunity to explain the same. 11. Of the authorities cited by the learned counsel only two authorities are relevant. In the case of Prem Parween versus Union of India, 1973 (2) S.L.R., 659, the Honble High Court of Delhi made the following observations regarding transfer of an official from one cadre to another: The argument is that as the president had the blanket power to transfer servant from one post to another it necessarily implies the power to transfer even outside the cadre. Now F.R. 15 does not in terms authorise the transfer of the government servant from one cadre to the other. What justification is there to imply such a power? On the other hand, if a reference is made to FR 14 (B) which states that subject to the provisions of Rule 15, the President may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of the post to which the lien relates, even if that lien has been suspended, it will be apparent that RFs 14 (B) and 15 are talking of the transfer within the same cadre.................... Logically by it does not stand to reasons that a person who is recruited to a particular cadre should be compelled against his wishes to serve outside the cadre even when the permanent post to which he holds a lien exists within the cadre..................." 12. As regards principle of natural justice, the Honble Apex Court in case of Kumaon Mandal Vikas Nigam Ltd. Versus Girja Shankar Pant and others, (2001) 1 Supreme Court Cases 182 has referred to the observations of the Honble Court in case of Keshav Mills Co. As regards principle of natural justice, the Honble Apex Court in case of Kumaon Mandal Vikas Nigam Ltd. Versus Girja Shankar Pant and others, (2001) 1 Supreme Court Cases 182 has referred to the observations of the Honble Court in case of Keshav Mills Co. Ltd. versus Union of India (1973) 1 SCC 380 which reads as under: "The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of administrative authority concerned should act fairly, impartially and reasonably." The Honble court in case of Kumaon Mandal Vikas Nigam Ltd. versus Girja Shankar Pant and others, further observed that" the totality of the situation ought to be taken note of and if on the examination of the such totality it comes to light that the executive action suffers from vice of the non-compliance with the doctrine, the law courts ought to set right the wrong inflicted upon the person concerned and to do so be a plain exercise of judicial power as a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a government action." In the light of the above facts and the case law, the following points emerge in the present original application. 13. That the applicant had initially been engaged as a Constable in the Police Department on the executive side. He was approved for the Executive Clerical Cadre vide order dated 16.3.1990. Though the applicant had rendered more than six years service, he I was not confirmed in the executive/Clerical cadre and was transferred to the executive side vide Annexure A-8 dated 26.12.1996. the standing order on the subject of confirmation had come into operation on December 23,1996 (Annexure A-13), which requires that a police officials of clerical staff will be considered eligible for confirmation after putting in minimum two years of service. The applicant in his representation to the Director General of Police"(Annexure A-9) dated 1.1.1997 had clearly mentioned that he was not confirmed in the executive clerical cadre, although a post in 1st battalion at Junga was lying vacant for the last two years and the same had not been filled in and a junior constable Sh. Prem Sukh, C No. 1020 of this cadre had been regularised in 1994. Prem Sukh, C No. 1020 of this cadre had been regularised in 1994. This representation was not accepted. In this background and as observed in the two cases cited above, the transfer of the applicant though the applicant was not confirmed in the executive Clerical cadre, is against the law laid down by the courts. Particularly, so when the applicant was not informed of the ground on Which he was not confirmed and was being reverted. The applicant was given no opportunity to explain his point of view or to rebut the so-called charge of inefficiency as observed by the respondents. In any case, the applicant had already been discharged in the criminal case which was registered against him and the contention that the applicant was censured has been denied in the rejoinder. 14. In view of above discussion the original application is allowed and Annexure-A/8 and A/10 are quashed. The respondents are directed to consider the applicant for regularisation in the Executive Clerical Cadre taking into account his seniority, performance of duties- and the instructions on the subject. The order be implemented within a period of three months from today. No order as to costs.-