Nagender Singh vs State of Haryana and Another

Rajiv Narain Raina, J.—A departmental test was conducted on 15.1.1991 in the office of the Deputy Inspector General of Police, Rohtak Range, Rohtak to consider cases of 35 constables for approval to be enlisted in the Executive Clerical Cadre (Account Branch) of the Police Department. Twenty two names were cleared for induction including that of the petitioner. The petitioner thus became a member of the Executive Clerical Cadre. It may be noted that the petitioner was initially recruited as a Constable in Haryana Armed Police on 3.3.1984 in the 4th Battalion. He was transferred to Faridabad in Gurgaon range in the year 1987. In 1990, he was transferred from Gurgaon range to Rohtak Range. After the petitioner cleared the test for being brought into the Executive Clerical Cadre at Rohtak, he was transferred to Gurgaon range vide transfer order dated 1.10.1997. This transfer was made with his approval on mutual transfer basis with one Shri Naresh Kumar who was brought from Gurgaon to Rohtak range and the petitioner was sent from Rohtak range to Gurgaon range under the orders of the Director General of Police, Haryana on joint request. In 1999, he was ordered to be transferred to District Faridabad on special pay. On 23.6.2006, he was promoted as officiating Head Constable without special pay and was posted in Faridabad. On 26.7.2007, he was promoted as officiating Assistant Sub Inspector without special pay against the post vacated by an ASI. On 27.7.2007, the petitioner was posted from Palwal to Gurgaon and on 24.3.2008, he was transferred from Palwal to Faridabad in newly carved out Faridabad range. Faridabad which was earlier in Gurgaon range was made an independent range on the creation of a new Mewat District out of Gurgaon and Palwal District out of District Faridabad.

The case of the petitioner was that once he was transferred on mutual transfer basis to Gurgaon range, from which range, Faridabad range was carved out has lot all concern with Rohtak range. Therefore, his seniority and benefit of further promotion in the Commissionerate of Faridabad deserved to be earned in Faridabad range. His representation for declaration that his parent range was Gurgaon and, thereafter, Faridabad, has been rejected on the ground that he cleared the test while he was serving in Rohtak range.

The question which arises for consideration is as to which range, the petitioner belongs to so that his seniority may be fixed, accordingly.

Mr. Anurag Goel, learned counsel appearing for the petitioner would refer to the order dated 11.6.2009 (P-6) issued by the Inspector General of Police, Faridabad Range, Faridabad which records that the petitioner who was on temporary duty in Palwal was being sent back to his parent district Faridabad. Since uncertainty had been created, the petitioner made a representation to the Director General of Police, Haryana, Panchkula dated 7.4.2010 praying for fixation of seniority in the Executive Clerical Cadre (Account Branch) in the Commissionerate of Faridabad. This request has been rejected by the DGP, Haryana on the assumption that the petitioner originally belongs to Rohtak range and, therefore, his seniority has to be fixed in that range.

It appears that the issue of seniority, parent range and lien of police personnel in the Commissionerate of Gurgaon and Faridabad engaged the attention of a Committee of the South Range to review the issue of bifurcation of cadres on creation of new district Mewat out of the existing district of Gurgaon and creation of district Palwal out of district Faridabad and the creation of Police Commissionerate, Gurgaon and the separation that followed. The Committee decided that all non Gazetted Officers (ASI/SIs) who were posted in the jurisdiction of district Faridabad on 1.8.2009 will have lien with the Police Commissionerate of Faridabad and all those NGOs who were posted in district Rewari, Mewat at Nuh, Mahendergarh at Narnaul and Palwal on 1.8.2009 will have their lien with the new police range i.e. South range. The Committee''s decision is dated 10.9.2010.

On 1.8.2009, the petitioner was serving as ASI in the Commissionerate of Faridabad and, therefore, it is urged by Mr. Anurag Goyal that his lien has to be taken in Faridabad Commissionerate and he could not be considered on the strength of Rohtak range which was, in any case, not his parent range. He had only passed the test in Rohtak range which was only a fortuitous circumstance to be brought on Executive Clerical Cadre (Accounts Branch) and nothing more. Learned Counsel reiterates from the order dated 11.6.2009 which was prior to the effective date i.e. 1.8.2009 that the Inspector General of Police, Faridabad range, Faridabad treated the District Faridabad as the petitioner''s parent district.

In the written statement filed by the respondents, the defence is taken that there are no rules relating to appointment and promotion of Executive Clerical Cadre under the Punjab Police Rules, 1934 as applicable to Haryana.

Mr. Harish Rathee, learned Senior DAG, Haryana would point out that in the absence of rules, instructions dated 6.6.1961 occupy the field and read with the decisions taken in the meeting between the DIG, Hisar Range and Ambala Range on 29.5.1976 and 30.1.1977, constables of Executive Cadre who qualify the typing test in English and Hindi are absorbed in the Executive Clerical Cadre and their seniority in the new cadre is determined from the date of absorption and their further promotion as Head constables/Assistant Sub Inspectors and Inspectors is governed as per availability of posts in the new cadre and their seniority is maintained at range level. It is admitted that the petitioner was absorbed in ECC (AB) in 1991 while he was posted in Rohtak range. In 1997, it is not disputed that on 26.6.1997, he was transferred mutually with Constable Naresh Kumar of district Gurgaon. From district Gurgaon, the petitioner was posted to District Faridabad on 21.9.1999 and, thereafter, Faridabad range was created and upon creation, the petitioner, indisputably was serving at Faridabad.

It is stated in the written statement that the seniority of the petitioner has been ordered to be fixed in Rohtak range in view of the meagre strength of the ECC cadre and to avoid any seniority disputes. It has been so done by treating Rohtak range as his parent range. It is stated that the seniority cannot be fixed on the ground of mutual transfer from Rohtak to Gurgaon in the erstwhile Gurgaon range.

Admittedly, there were no rules governing the issue. In the absence of Rules, I see no reason why the presence of the petitioner in Faridabad range when the transition took place based on a mutual transfer with a compatriot from Gurgaon and exchange of location should not be taken as sufficient principle for fixation of seniority in Gurgaon range, from which, Faridabad range was born. The question whether the petitioner receives special pay or not is inconsequential for the purpose of determination of seniority from a particular range/Commissionerate.

Mr. Harish Rathee, Sr. DAG, Haryana would refer to the order dated 15.10.2007 of this Court passed in CWP No. 17764 of 2005, in which proceedings, the State had filed an affidavit that after 1995, no Head Constable, other than Mohinder Pal Singh petitioner therein, was transferred from one range to another and whether if transferred, such transfers have been cancelled or not. The affidavit filed in these proceedings is sought to be used against the petitioner and the instructions dated 15.12.1995 that followed. Mr. Rathee has drawn the attention of this Court to Annexure R-5 dated 9.11.2010 in the matter of fixation of seniority of ECC. The petitioner''s name (Nagender Singh-No. 96/PWL) in Annexure R-5 is mentioned as Nagender Kumar No. 96/PWL. It is mentioned at page 56 of the paper book in R-5 against Nagender Kumar No. 96/PWL-''from Rohtak Range to Gurgaon range from 1.10.1997''. The decision taken was that those officials who were transferred from one range to another range prior to 15.12.1995 should be fixed as per rule in the ECC and those who were transferred after 15.12.1995, their seniority should be maintained in their parent range. In the list of officials of the account branch in R-5, the petitioner''s name does not find mention. It would be, therefore, safe to conclude that the petitioner deserved to be treated for the purpose of seniority as belonging to the Police Commissionerate Faridabad and mere passing of the test while posted in Rohtak range before mutual transfer could not be determinative of seniority or that the Rohtak range is the parent range of the petitioner. It cannot be lost sight of the fact that the petitioner was ordered to be transferred to Faridabad in the erstwhile Gurgaon range in the year 1987. Thereafter, he was transferred to Rohtak range in the year 1988 from where in 1991 he passed the typing test for absorption in the Executive Clerical Cadre. He returned to Gurgaon range on 1.10.1997 on mutual transfer with one Naresh Kumar. The decision of the Committee and the policy framed and circulated vide memo dated 10.11.2010 and duly approved by the DGP, Haryana (R-5) does not appear to govern cases involving mutual transfers and that is where the difference lies, and the policy does not cover the case of the petitioner. Therefore, the impugned order dated 13.12.2010 (P-8) cannot be sustained.

Besides, it has been passed in breach of principles of natural justice inasmuch as the petitioner was not heard. The promotion of the petitioner earned in Gurgaon range as Head Constable and Assistant Sub Inspector stands protected insofar as seniority is concerned. The decision dated 10.9.2010 (P-9) holds no water vis-�-vis the rights of the petitioner. For the foregoing reasons, this writ petition is allowed and the impugned order dated 13.12.2010 (P-8) is quashed.