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2006 DIGILAW 2391 (PNJ)

Rohtash v. State of Haryana

2006-05-31

M.M.KUMAR, M.M.S.BEDI

body2006
JUDGMENT M.M. KUMAR, J. 1. In bench of petitions (as per the list Annexure “A”) a common question of law and facts have been raised namely as to ‘whether the petitioners who are members of district cadre or range cadre could be transferred outside their respective cadres’. Before adverting to the facts, we would state the legal position so as to put the whole controversy in proper perspective. The question of inter cadre transfer is fairly well settled. In this regard, judgment of the Hon’ble Supreme Court in the case of Jawaharlal Nehru University v. Dr. K.S. Jawatkar and others, 1998 Suppl. (1) SCC 679, could be relied upon. In that case, the Centre of Post Graduate Studies was set up at Imphal by the Jawaharlal Nehru University (for brevity to be referred as ‘JNU’) and teaching administrative staff was appointed by JNU to man the Centre. Subsequently the Centre was transferred to Manipur University as per the decision of the Syndicate of JNU and as such the Centre ceased to exist. It became a part of Manipur University according to JNU. Controversial part of the decision of the Syndicate of JNU was that members of the faculty employed by JNU Centre of Post Graduate, Imphal immediately before its merger into the Manipur University were to become members of the staff of Manipur University. It was in these facts and circumstances that the Hon’ble Supreme Court held that the teaching staff working at JNU Centre of Post Graduate, Imphal could not be transferred to Manipur University without their consent notwithstanding any statutory provision to that effect. The view of the Hon’ble Supreme Court is discernible from the para 7 of the judgment and the same reads as under: “........ The Centre of Post Graduate Studies was set up at Imphal as an activity, the Appellant University set up and organized the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt, whatever that he was, and continues to be, an employee of the appellant University. Since the Centre represented an activity of the appellant University the teaching and administrative must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt, whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent’s consent .........” (Emphasis added). 2. Similar view has been expressed by their Lordships’ in the case of G. Varandani v. Kurukshetra University and another, (2003) 10 SCC 14. It clearly follows that the transfer of an employee from one cadre to another could not be made without his consent albeit the existence of a statutory provision to that effect. The controversy has already erupted before this Court and two Division Benches after referring to the Punjab Police Rules, 1934 (for brevity, ‘the Rules’) have also concluded in the manner aforesaid. In the case of Vinod Kumari and others v. State of Haryana and others (CWP No. 66 of 2006, decided on 4.4.2006), 2006(2) law Heraled (P&H) (DB) 1441. a Division Bench of this Court while disposing of bunch of petitions, after referring to Rules 13.7 to 13.9 of the Rules, has held as under: “....It would be relevant to mention, that Rules 13.7 to 13.9 of the Police rules require the maintenance of lists for promotion to the posts of Head Constables and Assistant Sub Inspectors at the level of the Superintendent of Police. Reading the aforesaid rules with the assertions of the petitioners, that a Superintendent of Police is in charge at the district level, which position is not controverted by the learned counsel for the respondents, we are satisfied that at least for the posts of Constables and Head Constables, it can be clearly concluded, that the cadre is at the police district level.” 3. In respect of those police officers who are in the range cadre, reference has been made to Rules 13.10 and 12.1(4) of the Rules and the Division Bench observed as under: “Like wise, a perusal of Rule 13.10 of the Police Rules reveal, that the list for promotion to the post of Sub Inspector is maintained by the Deputy Inspector General of Police. It is also asserted by the learned counsel for the petitioners that a Deputy Inspector General of Police is in charge at the range level. This factual position is also not disputed by the learned counsel for the respondents. It can, therefore, be clearly concluded while reading with the averments made in paragraph 6 (on merits) of the written statement, extracted above, that the cadre of the posts of Assistant Sub Inspectors and Sub Inspectors is maintained at the range level. The aforesaid position stands affirmed independently by Rule 12.1(4) of the Police Rules, wherein, it is asserted that Constables and Head Constables in each district shall be borne on the district rolls and shall receive district constabulary numbers, and further, that Assistant Sub Inspectors and Sub Inspectors shall be borne on the range rolls and shall receive constabulary numbers........” 4. On principle, the same proposition has been followed by another Division Bench in the case of ASI Megh Pal v. State of Haryana and others (CWP No. 18904 of 2005, decided on 7.2.2006) and a number of petitions were disposed of. 5. We have prefaced the above judgment to highlight that the respondent-State despite the view taken by two Division Benches of this Court, which on precedent as well as principle is unexceptionable and yet have forced the petitioners through the bunch of these petitions to approach this Court. We would have liked the respondent-State to follow the dictum of the judgments delivered by the Division Benches of this Court in the afore- mentioned two judgments, which are based on rules because the controversy in the instant petitions is also based on those Rules. 6. The undisputed facts in CWP No. 5149 of 2006 are that the petitioners had joined the police department of the respondent: - State as Constables. They had successfully undergone the training in the Lower School Course and their names have been brought on list C-I for further promotion to the post of Head Constable. 6. The undisputed facts in CWP No. 5149 of 2006 are that the petitioners had joined the police department of the respondent: - State as Constables. They had successfully undergone the training in the Lower School Course and their names have been brought on list C-I for further promotion to the post of Head Constable. It is appropriate to mention that according to Rule 13.7 of the Rules, List “B” is required to be maintained by each Superintendent of Police, which should include the names of all Constables selected for appointment to the Lower School Course, which is to be held at the Police Training College. The selection to the list is required to be made in the month of January each year and is limited to the number of seats allotted to district for that year. The mode of entering the name has also been prescribed Rule 13.8 deals with maintaining the list in Card Index form that included all Constables who have passed the Lower School Course and are considered eligible for promotion as Head Constable. All the petitioners have passed the Lower School Course and their names had been entered in List ‘C’ in pursuance to Rule 13.8 of Rules. Likewise Rules 13.9 and 13.10 of the Rules deals with the preparation of List ‘D’ for Assistant Sub Inspectors and Sub Inspectors. Their lists are required to be maintained range-wise. 7. The afore-mentioned factual position could not be successfully contested by the respondents. It is appropriate to mention that in Vinod Kumari’s case (supra), the afore-mentioned factual position was conceded in the written statement filed in that petition. It was clearly stated that the cadre of Constables/Head Constables has been maintained at the district level and the cadre of Assistant Sub Inspectors and Sub Inspectors is maintained at range cadre. 8. Shri. J.V. Yadav, S.S. Dinarpur, Anurag Goyal learned counsel for the petitioners have vehemently argued that the petitioners are sought to be transferred from one district to another without regard to their parent cadre in a particular district. Likewise, the transfers are being ordered by the respondents from one range to another in flagrant violation of the directions issued by this Court in Vinod Kumar’s case (supra) along with many other petitions. They have prayed for quashing of the transfer orders. Likewise, the transfers are being ordered by the respondents from one range to another in flagrant violation of the directions issued by this Court in Vinod Kumar’s case (supra) along with many other petitions. They have prayed for quashing of the transfer orders. With regard to the new stand taken by the respondents in the written statement by citing Rule 12.26 read with Rule 14.15 of the Rules, learned counsel have emphasized that the afore-mentioned Rules are not at all applicable. According to the learned counsel Rule 12.26 contemplates inter- district transfer in an exceptional case concerning exchange of employment between lower Subordinates in the district of the same range or between such police officers in the railway and district police subject to the approval of the Superintendent concerned. It has been maintained that Rule 12.26 of the Rules does not extend to inter cadre transfers without exchange which necessary implies consent of the lower subordinates in the district. Similarly, it is maintained that Rule 14.15 of the Rules is also not applicable as it is a general rule which requires any police officer to serve in any part of the State. According to the learned counsel even the aforementioned Rule 14.15 does not contemplate permanent transfer from the cadre without the consent of the officer. In support of their submission, the learned counsel have placed reliance on a judgment of this Court in the case of HC Kanwar Singh v. State of Haryana and others, 2005(1) SLR 243, wherein Rule12.26 of the Rules have been considered. 9. Mr. M.L. Saggar, learned Additional Advocate General, Haryana, has, however, argued that Rule 12.26 read with Rule 14.15 of the Rules confer on the authority a power to transfer a police officer or a lower subordinate (Constable and Head Constable) to any district or range. According to the learned State Counsel the power is omni-bus and is not controlled by the provisions of Rules 13.7 to 13.10 of the Rules. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of the Himachal Pradesh High Court in the case of Prithi Pal and others v. State of H.P. and others (Civil Writ Petition No. 252, decided on 28.7.1997, Annexure R-1). According to the learned State counsel, similar arguments raised in the instant petition were rejected by the Division Bench in Prithi Pal’s case (supra). According to the learned State counsel, similar arguments raised in the instant petition were rejected by the Division Bench in Prithi Pal’s case (supra). He has drawn our attention to the argument raised in para 2 of the judgment and argued that the theory of subordinate cadre based on district or range has been rejected by the Himachal Pradesh High Court and that the entire police force infact formed part of one cadre. It has further been pointed out that transfers are in large public interest and rights of the petitioners are unlikely to be prejudiced. 10. We have thoughtfully considered the submissions made by the learned counsel and are of the view that all these petitions deserved to be allowed. We find that the controversy raised in these petitions is squarely covered by the judgment of this Court in Vinod Kumar’s case (supra). The afore-mentioned judgment deals with the same rules and members of the same cadre namely Constables/Head Constables/Exemptees Head Constables; and Assistant Sub Inspectors and Sub Inspectors. The same rules are applicable to the petitioners. Rule 1.13 of the Rules also define the expression “gazetted police officers” and “enrolled police officer”. We further find that on principle the view taken by the learned Division Bench in Vinod Kumari’s case (supra) and Megh Pal’s case (supra) is fully supported by the observations made by the Hon’ble Supreme Court in the case of Jawaharlal Nehru University (supra). Once on the basis of Rules 13.7 to 13.10 of Rules it is evident that there are different cadres of officers and also their seniority lists are maintained separately, then it cannot be accepted that the inter-district transfer could be effected by considering the whole police force as one cadre on the basis of Section 2 read with Section 22 of the Police Act, 1861. Such a submission cannot be accepted after close scrutiny of Rules 13.7 to 13.10 of the Rules. The aforementioned Rules are extracted below for facility of reference:- “13.7. Selection of candidates for admission to courses at the Police Training College, - List B(in Form 13.7) shall be maintained by each Superintendent of Police. It shall include the names of all Constables selected for admission to the Lower School Course to be held at the Police Training College. The aforementioned Rules are extracted below for facility of reference:- “13.7. Selection of candidates for admission to courses at the Police Training College, - List B(in Form 13.7) shall be maintained by each Superintendent of Police. It shall include the names of all Constables selected for admission to the Lower School Course to be held at the Police Training College. Selection to the list shall be made in the Month of January each year and shall be limited to the number of seats allotted to the district for the year. For reasons to be recorded, the number of seats can be increased by 20 per cent. Allotment of seats to each district shall be done based on existing vacancies and the number of vacancies, which are likely to occur during the next one year. Names shall be entered in the list in the order of merit, determined by the Departmental Promotion Committee on the basis of tests in (i)Parade, (ii) written test in general law (Indian Penal Code, Criminl Procedure Code, Indian Evidence Act and such other Local and Special Laws as may be specified) and (iii) Examination of Service Record. ll Constables irrespective of their eductational qualifications shall be eligible to appear for the B-I test, if they are under the age of 40 years and have completed 5 years of service on the 1st day of July, for the year in which selection is made. (b) The marks to be awarded for educational qualification will be as under:- XX X XX X XX X XXX XXX XXX XX X XX X XXX XXX XXX 13.8 List C. Promotion to Head Constables. -(1) In each district a list shall be maintained in card index form (form 13.8(1)) of all constables who have pased the Lower School Course at Phillaur and are considered eligible for promotion to Head Constable. A card shall be prepered for each constable admitted to the list and shall contain his marking under sub-rule 13.5(2) and notes by the Superintendent himself, or furnished by Gazetted Officers unde whom the Constable has worked, on his qualifications and character. The list shall be kept confidentially by the Superintendent and shall be scrutinized and approved by the Deputy Inspector-General of Police at his annual inspection. The list shall be kept confidentially by the Superintendent and shall be scrutinized and approved by the Deputy Inspector-General of Police at his annual inspection. (2) Promotions to Head Constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2) The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comprising qualifications. In cases where other qualifications are equal, seniority in the police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector General, be promoted to Head Constable up to a maximum of ten per cent of vacancies. 13.8-A, Disqualification for admission to or retention in Lists A,B or C .-(1) The infliction of any major punishment shall be a bare to admission to or retention in lists A,B or C, provided that (a) for special reasons to be recorded by the Superintendent in each case, and subject to confirmation by the Deputy Inspector-General, this disqualification may be waived and (b) after six months’ continuous good conduct in the case of censure or confinement to quarters or on expiry of the period of reduction in the case of reduction for a specified period, a constable may be readmitted at the discretion of the Superintendent. (2) Gazetted Officers shall look out for, and encourage their Inspectors and Sub-Inspectors to bring to Notice, Constables who, by reason of their general character and ability or of special acts, are suited for inclusion in lists A, B or C and shall, after satisfying themselves by necessary enquiries, make suitable recommendations to the Superintendent. 13.9. List D. Promotion to Assistant Sub- Inspectors. - (1) A list shall be maintained in each district in card index Form 13.9(1) of those head constables who have passed the lower school course and the Intermediate school course at the Police Training School and are approved by the Deputy Inspector-General as eligible for officiating or substantive proportion to the rank of Assistant Sub-Inspector. No head constable shall be admitted to this list who is not thoroughly efficient in all branches of the duties of a constable and head constable and of established integrity. No head constable shall be admitted to this list who is not thoroughly efficient in all branches of the duties of a constable and head constable and of established integrity. (2) Officiating promotion to the rank of assistant sub-inspector shall be made from the list prescribed in sub-rule (1), as far as possible in rotation, so as to give each man a trial in the duties of the higher rank. Substantive promotion shall be made by the Deputy Inspector-General in accordance with the principles prescribed in Rule 13.1, and officiating promotion shall be made in accordance with sub-rule 13.4(2). (3) Half-yearly reports in Form 13.0(3) on all head constables in this list shall be furnished on the 15th April and the 15th October, to the Deputy Inspector-General. 13.10. List E. Promotion to Sub-Inspectors.(1) A list of all Assistant Sub-Inspectors, who have been approved by the Deputy Inspector-General as fit for trail in independent charge of a police station, or for specialist post on the establishment of sub-inspectors, shall be maintained in card index form by each Deputy Inspector General. Officiating promotions of short duration shall ordinarily be made within the district concerned (vide sub-rule 13.4(2) ), but vacancies of long duration may be filled by the promotion of any eligible man in the range at the discretion of the Deputy Inspector-General. Half-yearly reports on all men entered in the list maintained under this rule shall be furnished in the form No. 13.9(3)by the 15th October, in addition to the annual report to be submitted by the 15th April, in accordance with Police Rule 13.17(1) (2) No Assistant Sub-Inspector shall be confirmed in a substantive vacancy in the rank of Sub-Inspector unless he has been tested for at least a year as an officiating Sub-Inspector in independent charge of a police station in a district other than that in which his home is situated.” 11. Before dealing with the aforementioned Rules, it would be appropriate to refer to Chapter-I, Part-I, which deals with Departmental Organization. Rule 1.1 and 1.2 deals with the Constitution of the General Police and power vested in the Director General of Police. Rule 1.4 deals with the Administrative Divisions of the whole State with regard to the Railway Police District. Before dealing with the aforementioned Rules, it would be appropriate to refer to Chapter-I, Part-I, which deals with Departmental Organization. Rule 1.1 and 1.2 deals with the Constitution of the General Police and power vested in the Director General of Police. Rule 1.4 deals with the Administrative Divisions of the whole State with regard to the Railway Police District. According to Rule 1.6, the duties and functions of the Deputy Inspector General of Police are defined and he is responsible for the staff of his department and for the intelligence organization of the criminal administration. The Deputy Inspector General of a range is responsible to the Inspector General for the administration, training and discipline of the police of his range. A number of other things have also been mentioned with regard to the duties and functions of the Deputy Inspector General of Police, which are not considered relevant for the present case. According to Rule 1.8, Superintendent of Police has been made the executive head of the district police force. Rule 1.13 deals with class and rank of police officers and the same reads as under:- “1.13. Class and rank of Police Officers - The expression “gazette police officers” is applied to police offices appointed under Section 4, Act V of 1861, and includes the Inspector-General, Deputy Inspectors-General, Assistant Inspectors-General, Superintendents, Assistant Superintendents and Deputy Superintendents. The expression “enrolled police officer” is applied to police officers appointed under Section 7, Act V of 1861, and includes Inspectors, Sergeants, Sub-Inspectors, Assistant sub- Inspectors, Head Constables and Constables. The expression “upper subordinate” includes all enrolled police officers of and above the rank of assistant sub- inspector. The expression “lower subordinate” includes all other enrolled police officers.” 12. A perusal of the aforementioned Rule makes it evident that expression ‘enrolled police officer’ is applied to police officers appointed under Section 7 and includes Inspectors....Sub- Inspectors, Assistant Sub-Inspectors, Head Constables and Constables. It is further evident that the expression ‘upper subordinate’ is to include all enrolled police officers of and above the rank of Assistant Sub- Inspector. Therefore, the expression’ enrolled police officer’ would include Assistant sub- Inspectors and sub-Inspectors amongst others. The expression ‘lower subordinate’ is to include all other enrolled police officers which would mean Constables and Head Constables. It is further evident that the expression ‘upper subordinate’ is to include all enrolled police officers of and above the rank of Assistant Sub- Inspector. Therefore, the expression’ enrolled police officer’ would include Assistant sub- Inspectors and sub-Inspectors amongst others. The expression ‘lower subordinate’ is to include all other enrolled police officers which would mean Constables and Head Constables. It would, therefore, become evident that Rules 13.7 to 13.10 read with Rule 1.13 of the Rule clearly envisages separate cadre of Constable and head Constable, who are to be known as lower subordinate from the list of enrolled police officers and the Assistant Sub-Inspectors, Sub-Inspectors and Inspectors are to be regarded as upper subordinate from the list of enrolled police officers. Their cadre, list of seniority and promotions have been clearly delineated in Rules 13.7 to 13.10 of the Rules. Therefore, there cannot be any entertainable doubt with regard to the view taken by the leaned Division bench in Vinod Kumari’s case (supra) or in megh Pal’s case (supra). 13. we are further of the view that Rules. 12.26 and 14.15 of the Rules do not deal with inter cadre transfers as is sought to be projected by the learned State counsel on the basis of the judgment in Prithi Pal’s case (supra). The opening line of the rule “exchange of appointment” between lower subordinate in the district of the same range is extremely significant, which clarifies that officers who are covered by the expression ‘lower subordinate’ i.e. Constables and head Constables, could be appointed by exchange in a district of the same range. It clearly show’s that the Constables and Head Constables could be appointed by exchange. 14. It is further evident that Rule 12.26 of the Rules does not permit transfers of upper subordinates even by exchange as the Rule is merely confined to the lower subordinated in district of the same range i.e. the Constables and Head Constables. The Rule deals only with appointment by transfer on exchange basis. The Rule deals only with appointment by transfer on exchange basis. Rule 14.15 of the Rules can also not come to the rescue of the respondents as it incorporate normal principle of transfer to serve anywhere in the State. This Rule has to be read along with Rules 13.7 to 13.10 of the Rules. The Rule deals only with appointment by transfer on exchange basis. Rule 14.15 of the Rules can also not come to the rescue of the respondents as it incorporate normal principle of transfer to serve anywhere in the State. This Rule has to be read along with Rules 13.7 to 13.10 of the Rules. It cannot wipe out the creation of cadre, maintenance of seniority list showing inter se seniority of the lower subordinates and the upper subordinates enrolled police officers. A perusal of sub-rules (4), (5) and (6) of Rule 14.15 of the Rules would further show that the scheme of the Rule is entirely different as it deals with the period of service before an upper subordinate like Inspector, sub-Inspector and Assistant Sub-Inspector could be transferred or in case of registration of a criminal proceeding how the transfer is to be effected. Therefore, Rule 14.15 of the Rules does not del with inter-distinct transfer and it operates entirely in different area. 15. We are further of the view that the whole State of Haryana and the Police Officers (as well as lower subordinates) cannot be considered to be a member of one cadre as is sought to be projected by the learned State Counsel by placing reliance on the Division Bench judgment in Prithi Pal’s case (supra). We regret our inability to accept the contention raised because such an interpretation would completely wipe out the nature, contents and spirit of Rules 1.13,13.7 to 13.10 read with Rule 12.1 of the Rules, which contemplates various cadres at various levels, as has already been observed in the preceding paras. Therefore, with utmost respect we are not in agreement with the Division Bench judgment of the Himachal Pradesh High Court in Prithi Pal’s case (supra). 16. On precedent as well as on principles the mater is squarely clinched in favour of the petitioners. Therefore, we allow all these petitions and quash the orders transferring the petitioners’ inter-districts in the case of Constables/head Constables/Exemptees head Constables. We also quash the orders transferring the petitioners inter range in respect of Assistant Sub Inspectors and Sub Inspectors. We further direct the respondent to follow our directions without forcing the officers to approach this Court by filing individual petitions. We also quash the orders transferring the petitioners inter range in respect of Assistant Sub Inspectors and Sub Inspectors. We further direct the respondent to follow our directions without forcing the officers to approach this Court by filing individual petitions. As directions have already been given in Vinod Kumari’s case (supra) and also in Megh Pal’s case (supra) and also x x x x x x x x x x x x x x x x we impost a cost of Rs. 1000/- per petitioner on the respondents. 17. Registry is directed to place a copy of this order in all the connected petitions, detailed in Annexure ‘A’.