IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 7839 of 2004 Date of Decision: December 15, 2010 Constable Kulwant Singh and others … Petitioners Versus State of Punjab and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. Navkiran Singh, Advocate, for the petitioners. None for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition filed under Article 226 of the Constitution challenges orders dated 2.8.1999, 8.12.1998 and 30.12.2003 (Annexures P-3, P-4 and P-5 respectively). The petitioners have alleged that by the aforementioned orders their cadre has been changed from Executive Clerical Cadre to the General Cadre without seeking their consent, which adversely affects their rights to future promotional avenues. 2. Brief facts of the case are that the petitioners were admittedly enrolled as Constables in the Punjab Police on various dates during 1989, 1991 and 1992 in the General Cadre. On 15.6.1990, the Department of Home Affairs and Justice, Punjab, issued a notification amending Rule 1.1 CWP No. 7839 of 2004 of the Punjab Police Rules, 1934 (for brevity, ‘the Rules’). By this amendment various cadres including the cadre of ‘Executive Clerical Wing’ were formed (P-1). The amendment made in Rule 1.1 of the Rules reads thus: “Provided that each of the Tele-communications Branch, Finger Prints Bureau, Women Police Wing, Bank Staff, Mounted Police, Armourers and Executive Clerical Wing that is uniformed clerical functionaries posted in various subordinate offices shall form its separate cadre.” 3. The petitioners have claimed that they were transferred to the Police District Tarn Taran and absorbed in the Executive Clerical Cadre (Accounts Branch) by various orders passed during the years 1991 to 1997 as detailed in para 1 of the petition. On 27.1.2002, the Director General of Police, Punjab, issued Standing Order No. 2/2002 prescribing provisions for mode of selection, educational qualifications, procedure for promotion, confirmation & transfer, maintenance of service record and discipline & penalties of the incumbents to be recruited in the Executive Clerical Cadre (P-2). 4. The grievance of the petitioners is that vide orders dated 2.8.1999 and 8.12.1998 (P-3 and P-4), passed by the respondent authorities, they have been transferred to Police Lines, Tarn Taran from the English and Accounts Branch, which amounts to change of their cadre from Executive Clerical Cadre to that of General Cadre. While doing so no consent whatsoever has been obtained from them. Accordingly, they made a representation to the S.S.P. Tarn Taran, which was forwarded to the D.I.G. Border Range, Amritsar. On 31.12.2003 (P-5), the D.I.G. Border Range, 2 CWP No. 7839 of 2004 Amritsar, rejected the representation made by the petitioners (P-5). In the said order the reasoning given is that certain employees of District Amritsar, who were deputed as extra hands in the Executive Clerical Cadre approached this Court because they were removed from the Executive Clerical Cadre. Their writ petition was allowed. In para 5 of the said order it has been stated that the benefit of the order passed by this Court could be extended only to the writ petitioners and not to others who have been shifted in large number in other ranges. In the concluding para of the said order it has been advised that the vacant posts of Executive Clerical Cadre could be filled up in accordance with the provisions of the Standing Order issued by the D.G.P., Punjab. 5. In the written statement filed on behalf of the respondents the preliminary objection taken is that the petitioner were not initially recruited in the executive clerical cadre and they were never absorbed in the said cadre rather they were posted as ‘extra hands’ over and above the sanctioned strength of the executive clerical cadre. On merits, it has been pointed out that as per the provisions of Rule 2.5, 11.1 and 2.16 of the Rules prior sanction of the Government is required for any extra establishment, which in the case of the petitioners was neither sought nor accorded. It has further been submitted that the petitioners were recruited as General Duty Constables in terms of Chapter 12 of the Rules, therefore, while removing their names from the extra hands of executive clerical cadre (Account Branch) their seniority has not been disturbed. 6. No one has put appearance on behalf of the respondents. 7. Having heard learned counsel for the petitioners and perusing the paper book we find that the matter is no longer res integra. A similar 3 CWP No. 7839 of 2004 petition was for the first time filed by a lady Constable Bhupinder Kaur, namely, C.W.P. No. 9552 of 1999, decided on 27.9.2001 (Constable Bhupinder Kaur v. State of Punjab). After taking into consideration the identical stand of the respondents, a Division Bench of this Court has held as follows:- “ We have thoughtfully considered the arguments raised by the learned counsel for the parties and are of the view that the writ petition deservesto succeed. A perusal of memo, dated 29.10.1990 (Annexure R.III) would reveal that approval to the amendment in Rule 1.1 of the Punjab Police Rules, 1934, was accorded by the State Government on 15.6.1990 and Executive Clerical cadre i.e. uniformed clerical functionaries posted in various subordinate offices were expected to be a separate cadre than the Women Police Wing. Admittedly, the petitioner has been working as Typist or A.P. Clerk since 1993 which is a duty to be discharged by a member of Executive Clerical Cadre. On the basis of memo. Dated 29.10.1990, options were obtained and she preferred to continue in the existing cadre vide her option letter dated 18.12.1998. The Deputy Inspector General, Faridkot Range, Faridkot, accepted her request vide order dated 9.2.1999. Once the petitioner had exercised option, the Senior Superintendent of Police recommended her option and the Deputy Inspector General of Police had accepted that option by passing an order on 9.2.1999, the transfer of the petitioner under ipse dixit of the Deputy Inspector General of Police in pursuance to a letter issued by the Director General of 4 CWP No. 7839 of 2004 Police dated 1.3.1999, is not justified. In these circumstances, the order of transfer of the petitioner dated 11.3.1999, Annexure P-8, being an order of inter-cadre transfer cannot be sustained unless the consent of the petitioner was obtained. In view of the above, the writ petition is allowed. Order dated 11.3.1999 is quashed and it is directed that the petitioner shall continue in the Executive Clerical Cadre in pursuance to the orders dated 9.2.1999. No order as to costs.” 8. Similar view was followed and applied by the Division Benches of this Court in other cases such as Ranjit Singh v. State of Punjab, 2003 (1) SCT 777; L/C Paramjit Kaur v. State of Punjab, 2003 (2) SCT 202; and Surjit Kaur v. State of Punjab, 2003 (3) SCT 989. Moreover, in para 1 of the petition the specific stand taken by the petitioners is that they were absorbed in the Executive Clerical Cadre (Accounts Branch). In that regard they have even quoted the Order No. and date of absorption in the Clerical Cadre, which reads thus: “Sr. No. Name & Rank No. Dt. Of Enrollment Order No. Date of Absorption in Clerical Cadre (i) Ct. Kulwant Singh 3667/TT. 03-08-1989 11069-70/BR-I dt. 13.08.1992 (ii) L/Ct. Raj Rani 4425/TT 02-12-1991 13127-28/BR-I dt. 21.09.1992 (iii) Ct. Arjinder Singh 3534. 02-06-1989 DIG/BR/ASR Order No. 4906- 7/BR-I dated 26.04.1991. (iv) Ct. Lakhbir Singh 4718/T 31-08-1992 1354-56/BR-I Dt. 26.01.1996. (v) Ct. Sukhdev Singh 3802. 28-08-1991 1357-59/BR-I Dt. 26.01.1996. (vi) Ct. Manjinder Singh 3764/TT 05-08-1989 4620-21/BR-I Dt. 31.03.1993 5 CWP No. 7839 of 2004 (vii ) Ct. Poonamjit Kaur 3580 11174-75/BR-I Dt. 12.12.1997” 9. However, in the corresponding para 1 of the reply on merits, the respondents have admitted the contents of that para being matter of record. In other words, the respondents have admitted the fact that the petitioners were absorbed in the Executive Clerical Cadre. Thus, it can be safely concluded that the ratio of law laid down by a Division Bench of this Court in the case of Constable Bhupinder Kaur (supra) is fully applicable to the facts and circumstances of the instant petition. 10. As a sequel to the above discussion, this petition is allowed. Impugned orders dated 2.8.1999, 8.12.1998 and 30.12.2003 (P-3, P-4 and P-5 respectively) are quashed and it is directed that the petitioners shall continue in the Executive Clerical Cadre. No order as to costs. (M.M. KUMAR) JUDGE (RITU BAHRI) December 15, 2010 JUDGE Pkapoor 6