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2008 DIGILAW 1527 (PNJ)

Sandeep Mehta v. State Of Haryana

2008-09-05

AUGUSTINE GEORGE MASIH, MEHTAB S.GILL

body2008
Judgment Augustine George Masih, J. 1. By this judgment, we propose to dispose of Civil Writ Petitions No. 15390 of 2007 and 9175 of 2007 as common question of law and facts is involved therein. For the sake of convenience, facts are being taken from Civil Writ Petition No. 15390 of 2007. 2. The petitioner is seeking quashing of the order dated 15.9.2007 (Annexure P-7) passed by the Superintendent of Police, Panchkula vide which the petitioner has been ordered to be reverted from the post of Head Constable to that of Constable as also the Memo. dated 5.2.2007 (Annexure P-8) of the Director General of Police, Haryana wherein it has been conveyed that there is no sanctioned post of Technical Head Constable and therefore, the Constables who were recruited as Technical Constable having qualification of diploma for I.T.I./Polytechnic etc. i.e. Computer Operators, Draftsmen and Motor Mechanics etc. are not entitled to promotion against the general duty posts of Head Constables. 3. The facts leading to the filing of the present writ petition by the petitioner are that a communication was addressed by the Director General of Police, Haryana, to all District Superintendents of Police in Haryana, Superintendent of Police, Railways, Haryana, Ambala Cantt, and all Commandants of H.A.P. Battalions in Haryana State, thereby conveying the decision to the effect that each District, G.R.P. and each H.A.P. Battalion may recruit two Draftsmen, two Computer Operators and two Motor Mechanics in the rank of Constables. The qualifications for those posts were also given. It was further stated that the physical standards and age limit for these Constables would be the same as laid down in the Punjab Police Rules, (as `applicable to Haryana) read with Government instructions be issued in that regard from time to time. The petitioner contends that he applied for the post of Constable-Computer operator and possessed the qualification of 10+2 with one year diploma from a recognized Computer Training Institute which was the qualification prescribed for the said post. He was regularly and appointed as Constable-Computer Operator in the Haryana Armed Police on 9.3.1994 and joined as such in the pay scale of Rs. 950-1800/-. 4. The petitioner filed C.W.P. No. 15535 of 1999 claiming therein the pay- scale of Rs. 1200-2040/- with effect from the date of appointment on the basis of the notification dated 26.7.1991 issued by the State Government whereby the pay-scale of Rs. 950-1800/-. 4. The petitioner filed C.W.P. No. 15535 of 1999 claiming therein the pay- scale of Rs. 1200-2040/- with effect from the date of appointment on the basis of the notification dated 26.7.1991 issued by the State Government whereby the pay-scale of Rs. 1200-2040/- with effect from 1.5.1990 was granted to all the employees working against the posts for which the qualification prescribed was matriculation with I.T.I. certificate. The said writ petition was allowed by this Court vide judgment dated 12.9.2003. The State of Haryana preferred an SLP before, the Honble Supreme Court which was dismissed vide order dated 18.2.2005. The Petitioner was accordingly granted the pay-scale of Rs. 1200- 2040/- from 1994 with effect from the date of his appointment which was further revised to Rs. 4000-6000/- with effect from 1.1.1996. 5. It is contended in this petition that there is no separate cadre for the General Duty Constables or the Technical Constables nor there is any distinction made under the Rules governing their service. According to Rule 13.7 of the Punjab Police Rules, 1934 , as applicable to Haryana further promotion form the post of Constable is to that Head Constables. The said rule provides for selection of candidates for admission to Lower School Course. Rule 13.7 of the Punjab Police Rules provides that every Constable who fulfills eligibility is to be enlisted in promotion list B-I. The petitioner being fully eligible appeared in B-I test and cleared the same, where after he was deputed to the Lower School Course which he completed successfully. 6. As per Rule 13.8 whosoever successfully passes the Lower School Course, is to be included in list C-I which is being maintained for promotion to the post of Head Constables. Accordingly, on successful completion of the Lower School Course, the name of the petitioner was brought on list C-I with effect from 18.6.2004 and vide order dated 10.8.2004, he was promoted as officiating Head Constable with effect from 20.7.2004. 7. The petitioner was continuing on the said post when he was issued a show cause notice dated 22.2.2007 by the Superintendent of Police, Panchkula stating therein as to why he should not be reverted from the post of Head Constable to that of Constable. 7. The petitioner was continuing on the said post when he was issued a show cause notice dated 22.2.2007 by the Superintendent of Police, Panchkula stating therein as to why he should not be reverted from the post of Head Constable to that of Constable. In the said show cause notice, a reference was made to the Memo dated 5.2.2007 issued by the Director General of Police, Haryana wherein it was stated that there is no sanctioned post of Technical Head Constable and therefore, the Constables working on the post of Computer Operators, Draftsmen, Motor Mechanics etc. were not entitled to promotion against the general duty post of Head Constables. Moreover, these Constables were already drawing the salary of Head Constables. It is in this letter that the term `Technical Head Constable was used by the respondents. 8. To the said show cause notice, the petitioner submitted a detailed reply- thereby taking the stand that his promotion as Head Constable has been made strictly in accordance with the provisions of Rules 13.7 and 13.8 of the Punjab Police Rules and there is no distinction between a General Duty Constable and a Constable Technical. The petitioner has further contended that he has been posted as general duty Head Constable and has successfully performed the duties assigned to him on the said post and even after the issuance of show cause notice dated 22.2.2007, he has been transferred and posted in the Traffic Staff, Panchkula vide order dated 16.4.2007 (Annexure P-6/A) which is general duty. 9. Thereafter, vide order dated 15.9.2007 (Annexure P-7) passed by the Superintendent of Police, Panchkula the petitioner has been reverted to the post of Constable from the post of Head Constable while as per Memo. dated 5.2.2007 (Annexure P-8) passed by the Director General of Police, Haryana, it has been conveyed that there is no sanctioned post of Technical Head Constable. These two orders are now sought to be quashed by the petitioner on the ground that he was appointed against the sanctioned post of constable. It has been stated that apart from possessing the technical qualification, the petitioner fulfilled all the requirements the as per the Punjab Police Rules, so prescribed in the advertisement for appointment to the post of Constable and thus, for all intents and purposes he was holding the post of Constable wherein one common seniority was maintained. It has been stated that apart from possessing the technical qualification, the petitioner fulfilled all the requirements the as per the Punjab Police Rules, so prescribed in the advertisement for appointment to the post of Constable and thus, for all intents and purposes he was holding the post of Constable wherein one common seniority was maintained. Later, he qualified the requisite B-I test and was then deputed to the Lower School Course which he completed successfully. It is only thereafter that he was promoted as an officiating Head Constable. The other ground taken for challenging the reversion order is that there is only one cadre of Constables and there is no separate cadre under the Rules which could be termed as "Technical Constables" and "General Duty Constables". It stands admitted by the respondents in their written statement that there is no sanctioned post of Technical Constables, Technical Head Constables, Technical ASIs and Technical SIs. That being so, the petitioner cannot be termed as a Technical Constable and therefore, deprived of the promotion which he is entitled to in accordance with the Service Rules applicable to him. The statutory Rules granting him the right to be promoted, thus, cannot be curtailed so as to deprive him of his statutory rights merely on issuance of executive instructions. For this, the petitioner has relied upon a judgment of the Honble Supreme Court in the case of N.K. Pankajaksham Nair v. P.V. Jayraj, 2001(3) SCT 779. It has further been contended that until and unless in a cadre, a separate channel of promotion is provided under the statutory Rules, the petitioner cannot be deprived of his right which has crystalized on his promotion to the post of officiating Head Constable which can neither be withdrawn nor stopped merely on the basis of an executive order issued by the Director General of Police which is contrary to the statutory Rules. 10. The petitioner has further contended that as per settled proposition of law, an employee has a fundamental right to be considered for promotion to a post if he is entitled thereto under the statutory Rules. As of date, the statutory Rules applicable to him give him a right for promotion which has been so granted under the Service Rules applicable to him. 11. As of date, the statutory Rules applicable to him give him a right for promotion which has been so granted under the Service Rules applicable to him. 11. Upon issuance of notice of motion to the respondents; written statement has been filed wherein the stand taken by them is that the petitioner and similarly placed Computer Operators, Draftsmen, Motor Mechanics etc. were appointed against some available posts of Constables of general duty in order to meet imminent requirement of these posts. The factum with regard to petitioners appearing in B-I test and thereafter undergoing the Lower School Course successfully is not disputed. Further, the fact with regard to his promotion as officiating Head Constable is also not disputed. The only ground taken on behalf of the respondents is that since the petitioner and others do not belong, to the stream of general duty constables, they are not entitled to promotion to the post of Head Constables against general duty posts. It has been contended that as there is no sanctioned post of Technical Head Constables, these Technical Constables cannot be promoted as such. However, they will be entitled to ACP Scales and will be considered for further promotion as exemptee Head Constable, Exemptee ASI and Exemptee Sub Inspector after the requisite length of service as per Government instructions. Another stand taken by the respondents is that the petitioner is trying to get benefited on technical side as well as general duty Constable side. It has been contended that in compliance, of the decision of this Court, the petitioner has been granted the technical grade of Rs. 1200-2040/- and the corresponding revised pay-scale of Rs. 4000-6000/-, which is actually the pay-scale of Head Constable and since the petitioner is already enjoying the pay scale of the post of Head Constable, there is no loss to the petitioner by his reversion to the post of Constable. 12. We have heard counsel for the parties and with their able assistance gone through the pleadings. The facts which have come-forth and are not in dispute are that the petitioner was appointed on the vacant post of Constable General Duty as Constable Computer Operator. 12. We have heard counsel for the parties and with their able assistance gone through the pleadings. The facts which have come-forth and are not in dispute are that the petitioner was appointed on the vacant post of Constable General Duty as Constable Computer Operator. The requirement for appointment to the post held by the petitioner is more stringent as apart from the physical requirements for appointment to the post of Constable as per the Punjab Police Rules, 1934 , an additional qualification of one year diploma is required. There is no separate cadre or separate service Rules governing the services qua the alleged post of Technical Constables or Constables General Duty as the Rules do not provide for separate posts for Technical Constables and Constables General Duty. The petitioner on passing the B-I test, was deputed to the Lower School Course, which he completed successfully, whereafter he was promoted as officiating Head Constable. All this was done on the basis of the common seniority maintained for Constables. The service Rules, do not provide for any distinction between the post held by the petitioner and the alleged post of Constable General Duty. The petitioner has been transferred as Constable General Duty and has been performing the responsibilities of the said post. For all intents and purposes as well as under the Rule, the petitioner is working as a Constable In this way, the petitioner fulfills all the requirements for promotion to the post of Head Constable. The petitioner cannot be deprived of his right to be considered for promotion so conferred upon him under the Punjab Police Rules, 1934 , as applicable to State of Haryana, by mere issuance of executive instructions. Unless separate cadre is carved out for each separate category and necessary amendments brought about in the service Rules, the respondents cannot justifiably be allowed to take a stand that there is no sanctioned post for Technical Head Constables whereas in fact, there is no sanctioned post of Technical Constable as well. Once the petitioner has been appointed against the post of Constables there is no sanctioned post of Technical Constable, how under the statutory Rules, can be deprived of is right to be considered for promotion to the post of Head Constable ? 13. Once the petitioner has been appointed against the post of Constables there is no sanctioned post of Technical Constable, how under the statutory Rules, can be deprived of is right to be considered for promotion to the post of Head Constable ? 13. We are of the considered view that unless the Rules amended and a separate cadre created for the petitioner and similarly situated persons, which the respondents have sought to distinguish in the written statement on the basis of the Memo. of Director General of Police, Haryana dated 5.2.2007 (Annexure P-8), the petitioner and the persons belonging to the categories mentioned in the Memo. dated 5.2.2007, cannot be treated differently from the other Constables as they are governed by the same set of Rules, which provide for a single cadre of Constables with common seniority and other statutory benefits. In this view of the matter, the order dated 15.9.2007 (Annexure P-7) and Memo. dated 5.2.2007 (Annexure P-8) cannot be sustained and deserve to be quashed. 14. Consequently, this writ petition is allowed and the impugned order dated 15.9.2007 passed by the Superintendent of Police, Panchkula (Annexure P-7) and Memo. Dated 5.2.2007 of Director General of Police, Haryana (Annexure P-8) are hereby quashed.