9911796707
TMI Blog1997 (10) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... ryana 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 be considered for promotions on the relevant dates when persons 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 retirement from the posts they were holding in CID, the order of repatriation would not come in their way and 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. 3. To understand the rival contentions, we shall consider the case of Inder Singh one of the respondents (CA Nos. 1293-1303 of 1995). He was enrolled in the Punjab Police on August 31, 1966 as Consta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med 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 writ 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 certiorari 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le while serving in the Criminal Investigation Department for grade promotion in the selection grade, shall receive such promotion, if the Deputy Inspector-General of the range and Criminal Investigation Department agree that he is fit for it. (5) Annual reports on upper subordinates serving on deputation in the Criminal Investigation Department shall be sent by the Deputy Inspector-General, Criminal Investigation Department, to the range Deputy Inspector-General concerned for record and other necessary action. (6) In very exceptional cases and for the political branch only and with the written sanction of the Deputy Inspector-General personally, direct enrolment as constable or in higher ranks, may be made to the Criminal Investigation Department. Specialists shall, however, when possible, be entertained on contract terms, so that their services may be dispensed with when their utility ceases or deteriorates. 21.25. (A) The Deputy Inspector-General, Criminal Investigation Department, shall have complete disciplinary control over all police officers while serving in the Criminal Investigation Department. 5. Rules also describe the duties of CID but that is not necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tables is prescribed in Rule 13.9(1). Those Head Constables who qualify at Police Training College in the promotion course for Head Constables find their names entered in Part-I of List-D. Rule 13.9(2) prescribes that names of outstanding Head Constables who have not passed the promotion course for Head Constables due to being over-age but otherwise are of exceptional merit and are considered suitable may, with the approval of Inspector-General of Police, be entered in Part II of List D. Further under this sub-rule not more than 10% of the posts of Assistant Sub-Inspectors will be filled from the names in Part II of List D. Promotions to the posts of Assistant Sub-Inspectors are to be made from List D (Part-II). Similar procedure is prescribed for promotion of all Assistant Sub-Inspectors to Sub-Inspector from List E (Part-1) which contains the names of Assistant Sub-Inspectors who qualified for promotion course for Assistant Sub-Inspectors at Police Training College. List E is also in two parts. Part II of List E contains the names of Assistant Sub-Inspectors of exceptional merit who have not qualified the course for Assistant Sub-Inspectors at Police Training College and are cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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? 9. As to what relief the High Court granted we have noted above. 10. 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 ad hoc basis. Appellants have brought on record a chart to show that even Constables who were senior to the respondents are still working as Constable as they could not qualify for further promotion in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to CID could not exceed a period of five years and after the expiry of this period the respondents should have been sent back to their respective districts and that after all this period on deputation to CID now asking them to appear in test would not only be irregular but arbitrary as well. We do not think that Sub-rule (1) of Rule 21.25 limits the deputation to CID for a maximum period of five years. In the first instance deputation is for three years and it can be extended for not more than two years at a time. It cannot be said that after three years the extension is for further two years and no more. We have to give an ordinary meaning to the words used in the sub-rule. We however, agree with the respondents that every time deputation was extended they should have been informed of their rights in CID while on deputation vis-a-vis their parent department. 12. Mr. P.P. Rao learned Counsel for the appellant-State of Punjab, submitted that repatriation of the respondents was necessary as Government thought of injecting fresh blood in CID. It appears to be rather a specious plea. It is not disputed that officers having put in more years than the respondents are still working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector 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. 16. During course of arguments, certain decisions of this Court were referred to on the question of deputation and the right of the deputationist on his repatriation. These, we may note. In D.M. Bharti v. L.M. Sud and Ors. [1991] Supp. 2 SCC 162, the appellant who was working as a Tracer in Municipal Corporation Ahmedabad went to Town Planning Establishment by way of deputation. In the Town Planning Establishment, the appellant was promoted as Junior Draftsman and there was a proposal to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. This Court laid the following principle: The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved services in the grade of Section Officer as a condition of eligibility for being considered for promotion to Grade I Post of C.S.S. This rule is equally applicable to both the direct recruit Section Officers as well as the promotee Sections Officers. The submission that a senior Section Officer has a right to be considered for promotion to Grade-I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents to absorb him in the Department of Food and Civil Supplies in the post then held by him. The appellant was, thus, absorbed and was placed above R.K. Vasudev. The appellant was then promoted as Assistant Director on January 1, 1980. Similarly, R.K. Vasudev was also promoted as Assistant Director. The question before this Court was of the inter se seniority between the appellant and R.K. Vasudev. This Court agreed that as per Rules, the appellant could not have been sent on deputation to higher post than the post held by him in the parent Department. But then the Court said that he had uninterruptedly worked in the Food Department and under those circumstances though initially the appellant might have been mistakenly deputed to hold higher post in the Food and Civil Supplies Department, but since the appellant had obviously discharged his duties and higher responsibilities to the satisfaction of all concerned, at this distance of time, it is highly unjust to send him back to hold the post in the parent department which he was entitled to hold and the Tribunal is not right to interfere with action of the department in its absorption of the appellant as per its own earlier orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be. 20. It is no doubt really harsh on the respondents to be sent back after they have served the CID for number of years in higher rank though on ad hoc basis and now when they go back they have to work either as Constables or Head Constables. It was submitted before us that an employee could seek voluntary retirement after putting in 20 years of qualifying service and that the High Court in the impugned judgment gave option to the respondents to seek voluntary retirement while still working in the CID and holding higher ranks. This option can, however, be limited to only those respondents who have put in 20 years of qualifying service as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
