IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 5041 of 2006 Date of Decision: 04.12.2006 Umesh Bala and another ...Petitioners Versus State of Haryana and others ...Respondents Coram: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE M.M.S. BEDI Present: Mr. Rajive Atma Ram, Senior Advocate, with Mr. Hem Raj Mittal, Advocate. Mr. R.S. Bains, Advocate Mr. S.N. Yadav, Advocate. Mr. Jai Vir Yadav, Advocate. Mr. Girish Agnihotri, Advocate. Mr. H.R. Mittal, Advocate. Mr. Vijay K. Jindal, Advocate. Mr. Gurmeet Singh, Advocate. Mr. Sanjeev Gupta, Advocate. Mr. Satinder Khanna, Advocate. Mr. R.K. Gupta, Advocate. Mr. Kuldip Singh, Advocate. Mr. Narender Hooda, Advocate. Mr. Ashwani Pakshi, Advocate. Mr. R.N. Lohan, Advocate. Mr. Ramender Chauhan, Advocate. Mr. V.K. Bali, Advocate. Mr. S.S. Sodhi, Advocate. for the petitioner(s). Mr. Harish Rathee, Sr. DAG, Haryana, for the respondents. M.M. KUMAR, J. C.W.P. No. 5041 of 2006 This order shall dispose of 24 writ petitions as common question of law and facts have been raised (for details see footnote at the end of this judgement). For understanding the contour of controversy, the facts are being referred from C.W.P. No. 5041 of 2006. Both the petitioners in C.W.P. No. 5041 of 2006 have been working in the Haryana Police as lady constable in Gurgaon Range. Petitioner No. 1 had joined as constable on 5.6.1982. She qualified B-I List Test in January, 1986. She also qualified C-I List Test in September, 1986 and was promoted as Head-Constable on 14.9.1988. She was detailed for Intermediate School Course in 1991 and was promoted as Assistant Sub-Inspector (ASI) on 9.9.1992 and confirmed as such on 30.1.1999. She was further detailed for Upper School Course in 1998 and was promoted as Sub-Inspector on 11.9.2001. She was still further promoted as Inspector on 9.9.2004. Petitioner No. 2 had joined as Constable on 9.11.1981. She was detailed for B-I List Test which she qualified in January, 1987. She also qualified C-I List Test in March, 1988 and was promoted to the post of Head Constable on 14.9.1988. She was further detailed for Intermediate School Course in 1993 and was promoted as Assistant Sub-Inspector (ASI) on 12.11.1996 and was confirmed as such on 30.1.1999. She appeared for Upper School Course in 1999, which is a requirement for promotion to the post of Sub-Inspector which she qualified and was promoted as Sub- 2 C.W.P. No. 5041 of 2006 Inspector on 11.9.2001. She has further been promoted as Inspector on 6.10.2004. The claim made by them is that there was joint cadre of male and female police personnel of all ranks in Haryana Police, which was separated by issuance of instructions dated 11.4.1996. The original strength of the female cadre of Haryana Police was 1 Inspector, 8 Sub-Inspectors, 17 Assistant Sub-Inspectors and 39 Head Constables. On 20.7.2001, the cadre strength of female police was increased. As a consequence, 3 posts of Inspectors, 12 posts of Sub- Inspectors, 19 posts of Assistant Sub-Inspectors and 36 posts of Head Constables were added to the existing cadre strength. Accordingly, the total strength of female cadre after 20.7.2001 was 4 Inspectors, 20 Sub-Inspectors, 36 Assistant Sub-Inspectors and 75 Head Constables. On increase of cadre strength, 4 Women Police Stations including one Crime Against Woman Cell were set up. It is the further case of the petitioner that in the year 2003, the National Commission for Women recommended the creation of Mahila Desks in each Police Station and the creation of Women Cells in every districts. After ascertaining the views of various authorities, a meeting was held by the National Commission for Women between Chief Secretary to Government of Haryana and various other higher officers on 24.4.2003. It was decided that each Police Station must have a Mahila Desk manned by a female police official. A copy of the minutes of the meeting dated 24.4.2003 have been placed on record (Annexure P-4). In pursuance of the decision 3 C.W.P. No. 5041 of 2006 taken in the meeting dated 24.4.2003, the Director General of Police, Haryana issued direction for appropriate action in general and specifically directed setting up of Mahila Desks in each police station. On account of the paucity of posts for female police, some difficulties were stated to have been experienced in creation of Mahila Desks and Women Cell/Female Police Station as per the decision taken in the meeting held on 24.4.2003. On 11.3.2004 (Annexure P-3), the Director General of Police, Haryana issued orders converting various posts from male cadre to female cadre. Such as 15 posts of Inspectors, 40 posts of Sub-Inspectors, 80 posts of Assistant Sub-Inspectors and 160 posts of Head Constables were converted from male cadre to female cadre. On the basis of the cadre strength of the female police, the petitioners were promoted as Inspector on ad hoc basis vide orders dated 9.9.2004 and 6.10.2004 respectively. It is pertinent to mention that after the conversion of various level posts from male cadre to female cadre, the increase cadre strength of female police was distributed amongst 4 districts. As per the table given below:- Gurgaon Faridabad Rewari Narnaul Inspector 1 1 1 1 Sub Inspector 3 3 2 2 Assistant Sub Inspector 6 6 4 6 Head Constable 14 14 6 6 The Director General of Police, Haryana rescinded the order dated 11.3.2004 (Annexure P-3) and has ordered the restoration 4 C.W.P. No. 5041 of 2006 of earlier sanction strength of female police. There are various reasons discernible from the impugned order dated 10.1.2005 (Annexure P-5), which may be summed up as under:- a) The conversion of various posts from male cadre was unauthorisedly converted to female cadre without obtaining requisite prior approval of the State Government; b) Additional strength of police cadre of female has been created by unauthorized conversion of posts without any justification, administrative consideration or public interest; c) The aforementioned diversion of posts belonging to male police to female police has caused heartburning because women police personnel got quicker and out of turn promotions at the cost of their male counterparts affecting moral of male police. On the basis of the aforementioned reasoning, the Director General of Police reached a conclusion that women police personnel who have been irregularly promoted against the posts allocated to male police personnel were to be reverted after issuing them the requisite show cause notice. Accordingly, a show cause notice was issued to all. A copy of one such show cause notice dated 1.3.2006 (Annexure P-6), issued to petitioner No. 2 has been placed on record. The show cause notice points out that the cadre of women 5 C.W.P. No. 5041 of 2006 police of the State police is separate cadre from male cadre. It further points out that in the year 2003 there were only 4 sanctioned posts of lady Inspectors. Those posts were allocated one each to Ambala Range, Hissar Range, Gurgaon Range and Rohtak Range, Three posts of Inspectors have already been filled up in the year 2004 and only one vacancy on the post of Inspector was available. It was alleged that the petitioners were promoted as Inspector on the posts created in the Haryana State Industrial Security Force (for brevity, ‘the HSISF’) under the Haryana State Industrial Security Force Act, 2003 (for brevity, ‘the 2003 Act’) and 15 posts wrongly converted from the male cadre to women cadre in the Haryana Police without the permission of the Government by the Director General of Police at his own level and, therefore, once 15 posts of Inspector created by diverting posts from male cadre to female cadre are withdrawn then promotion of the petitioners was stated to be illegal because even otherwise, the petitioners did not possess requisite experience as required under Rule 13.14(2) of the Punjab Police Rules, 1934 (as applicable to Haryana) (for brevity, ‘the Rules’). It was further stated that the 2003 Act was never enforced and no posts could have been filled up. In the written statement filed by the respondents-State, the stand taken is that the petitioners have been wrongly promoted as Inspectors on ad hoc and fortuitous basis after clubbing posts of Inspector, which were sanctioned for the HSISF and 15 posts which were illegally converted from male cadre to female cadre by order 6 C.W.P. No. 5041 of 2006 dated 11.3.2004, without obtaining any prior approval of the Government. In respect of the 2003 Act, it has been stated that the 2003 Act was never enforced by issuing any notification notifying the date of its enforcement as required by Section 1(3) of the 2003 Act. Accordingly, the Director General of Police has no authority to fill up the posts of the HSISF. It has further been pointed out that no one was appointed in accordance with the provisions of the 2003 Act. Like-wise, the order converting various posts from male cadre to female cadre was issued without prior approval of the State Government. As both the cadres are separate with separate sanction strength, it has been asserted that the Director General of Police has no authority to convert one cadre post to the other. The respondents have also placed reliance on the orders of promotion by submitting that the petitioners were promoted on purely ad hoc and fortuitous basis with a stipulation that they were not to have any right to the posts and were liable to be reverted at any time without any notice. Even otherwise, these officers did not fulfil the requirement/qualification for promotion as Inspector as per provisions of the Rules. A copy each of the promotion orders have been placed on record as Annexures R-2 and R-3. The order dated 11.3.2004, converting various posts in the male police cadre has already been withdrawn in accordance with law and the petitioners have been reverted as no posts of lady Inspector is available. It has been pointed out that a large number of male police personnel who joined with the petitioners as Head Constable or Assistant Sub- 7 C.W.P. No. 5041 of 2006 Inspectors have been continuing as such. A comparison has been made by the respondents by juxtaposing the cases of the male police personnel with that of the petitioners, with the help of a table which expresses a bird eye view and the same is as under:- Sr. No. Particulars Petitioners Male counterpart Umesh Bala 202/G Prem Devi 70/NNL ASI Chander Pal, 273/FBD ASI Ram Kumar 916/FBD 1. Date of enlistment 05.06.82 09.11.81 17.03.77 04.05.74 2. Name brought on List C-1 9/86 4/88 9/86 4/88 3. Date of promotion as HC 14.09.88 14.09.88 16.05.90 18.09.95 4. Date of confirma- tion as HC 31.01.91 31.01.91 31.01.03 31.01.03 5. ‘D’ List 09.11.96 09.11.96 22.03.03 03.04.02 6. Date of promotion as ASI 12.11.96 12.11.96 23.12.2002 09.04.2003 7. Date of confirma- tion as ASI 31.01.99 31.01.99 Awaiting Awaiting 8. ‘E’ List 11.09.01 11.09.01 Awaiting Awaiting 9. Date of promotion as SI 11.09.01 11.09.01 Awaiting Awaiting It has further been pointed out that both the petitioners were promoted as Sub-Inspectors on 11.0.2001 and within three year, they were further promoted on the post of Inspector which contravenes Rule 13.14(2) of the Rules. The Rule which 8 C.W.P. No. 5041 of 2006 categorically provides that no Sub-Inspector is to be considered for promotion as Inspector unless he has atleast eight years’ approved service as an upper subordinate, of which at least five years were required to be in the rank of Sub-Inspector, and he is required to be thoroughly efficient and competent to hold charge of a police station of first class importance. It is obvious that petitioners did not have service experience of five years as Sub-Inspector as per the requirement of the Rule. They did not ever hold charge of police station as Sub Inspector and could not be considered competent to hold charge of a police station as Inspector/SHO. When the matter came up for consideration on 4.7.2006, we have directed the respondents to maintain status quo as existed on that date. Thereafter, the matter was considered on 26.7.2006 and following clarifications were required to be furnished by the respondents-State :- “(a) Order dated 11.3.2004 diverting some posts in the cadre of Head Constables, Assistant Sub Inspectors, Sub inspectors and Inspectors to be manned by female police personnel was issued. The issue raised is as to whether any approval of the Government was obtained and if so, the date of the approval. (b) The State shall also clarify as to how many male police personnel in the cadre of Assistant Sub Inspectors, Sub Inspectors and Inspectors are likely to be adversely affected by virtue of diverting some of the posts for 9 C.W.P. No. 5041 of 2006 female cadre in pursuance of the instructions dated 11.3.2004 (Annexure P-3). (c) Respondent-State should also explain as to how the judgment in the case of Iqbal Kaur and Others has been followed to create cadre for female vide order dated 11.4.1996 (Annexure P-3), a copy of which has been taken on record as mark ‘A’. The respondent-State may place on record Pyramidical organisational structure of the department. In other words, it may be explained as to how many posts of Head Constables, Assistant Sub Inspectors and Inspectors have been created. Whether the same is considered with the pyramidical order prevalent in the department. The needful shall be done within 10 days with copies in advance to the learned counsel for the petitioners. List the matter for hearing on 9.8.2006. A copy of this order be given to the learned State Counsel under the signature of the Court Secretary.” In response to the queries made by us, Shri B.S. Sandhu, Inspector General of Police, Haryana, filed an affidavit to the aforementioned clauses a, b and c, their reply reads as under:- “ (a) That in reference to para (a), it is submitted that the then DGP did not take any approval of the State Government before converting some posts viz. 10 C.W.P. No. 5041 of 2006 15/Inspecotrs, 42/Sub Inspectors, 84/ASIs and 160/Head Constables from male cadre to female cadre. Only copy of order dated 11.3.2004 was endorsed to the State Government for information and necessary action in routine manner. However, it is clarified that no specific approval was also sought from the Government by the then DGP. It is pertinent to mention here that rule 1.3. of Punjab Police Rules clearly says that the Inspector General may with the approval of the State Government add such other cadres from time to time as the need arise. (b) That in response to point (b) it is submitted that following male cadres official were adversely affected due to wrongful and unlawful conversion of their posts to that of female cadre officials.:- Sr. No. Name of Post No. of posts converted from male cadre to Female cadre Affected male officials 1. Inspector 15 - 2. Sub Inspector 42 15 3. ASI 84 57(42+15) 4. Head Constable 160 141(84+57) 5. Constable - 301(160+141) From the above table it is crystal clear that large number of officials of the male cadre were adversely affected due to wrongful conversion. 11 C.W.P. No. 5041 of 2006 It is pertinent to mention here that some of the affected male cadre officials had filed a CWP No.14612 of 2004 with the prayer for quashing the impugned executive order dated 11.3.2004 whereby the promotional posts for Lay/HCs, ASIs, Sis and Inspector have increased without any legal basis and reservation in promotion has been introduced directly without any legal basis or order of Government, thereby reducing the promotional avenue of the petitioners in violation of the settled law. The aforesaid writ petiton was disposed of by the division Bench of this Hon’ble Court vide order dated 06.09.2005 which reads as under:. “Mr. Sidhu states that the Government itself is taking a fresh look at the impugned order dated 11.3.2004, Annexure P-2. We accordingly disposed of this petition as infructuous and request the respondents to look into the matter and take a final decision either ways within a period of two months from the date that a certified copy of this order is supplied to them” (Copy of judgment dated 06.09.2005 is attached as Annexure R-1). Accordingly on 10.01.2006 it was decided to withdraw the wrongful orders dated 11.3.2004 of conversion of male cadre posts to female cadre as the 12 C.W.P. No. 5041 of 2006 same was passed without prior approval of the State Government and accordingly detailed speaking order dated 10.01.2006 was passed for the withdrawal of order dated 11.3.2004 (copy of the order dated 10.01.2006 is attached herewith as Annexure R-2). (c) That in reply to point (c) it is submitted that lady constables cadre is a separate cadre and standing instructions for holding B-1 List test of lady constable for deputing them in lower school course was issued vide memo No.1095-98/T-2, dated 17.2.84, vide instruction No.14401-30/B-3, dated 17.02.84, Again in the year 1993 vide instruction No.14401-30/B-3, dated 9.7.2003, the earlier instructions regarding lady constables, were withdrawn. Vide instructions dated 04.11.93 and 26.04.94 it was first time decided that male and female police personnel of all ranks constitute one single joint cadre and a single seniority list of constable/Head Constable and ASI’s etc. of both the male and female police personnel be ordered to be maintained. It was also decided that the benefits which the lady police officials had derived by virtue of female police being treated as a separate cadre and which were not in consonance with the provisions of police rules are to be taken and their seniority was refixed. Likewise, the lady police officials 13 C.W.P. No. 5041 of 2006 who have suffered on that account have also to be restored to their correct seniority. However, some lady officials had filed CWP No.15640 of 2004 titled Iqbal Kaur and others versus State of Haryana and challenged the instructions dated 09.07.03 vide which instructions No.1095-98/T-2, dated 17.2.84, No.10784-814/T-2, dated 23.12.87 and 85- 109/T-2, dated 04.01.89 were withdrawn. Hon’ble High Court vide its judgment dated 14.08.05 ordered that the instructions issued on 09.07.93 were withdrawn by the department. Hence, the female cadre remained intact as a separate cadre. Copy of instructions No.10161-65/B-3, dated 11.04.96 is attached as Annexure R-3. That it is also submitted that as per record of this office, no pyramidcal organizational chart is maintained. However, as per provisions laid down in PPR 2.2 there shall be one HC to every 10 Constables; one ASI to every 5 Head Constables and one SI to every 100 Constables. According to this, if it is analyzed, on the basis of the numbers of constables existed before conversion of posts of male cadre to the female cadre vide order dated 11.3.2004 there would have been 37/Head Constables, 8/ASIs and 4/Sis for 368 constables. Whereas the strength of women police officials prior to the conversion of male cadre to female 14 C.W.P. No. 5041 of 2006 cadre in the year 2004 was 4/Inspectors, 20/SIs, 36/ASIs, 75/Head Constables and 368/Constables. It clearly indicate that women police officials were already in excess as per norms prescribed in rule 2.2 of Punjab Police Rules. Though no provisions have been fixed for creation of post of Inspectors in the rules, at the most one post of Inspector could be provided for female police officials. Moreover, it is pertinent to mention here that at present, after withdrawal of the wrongful orders of conversion and creation of new posts from time to time, the existing strength of Lady Police officials is 4/Inspectors, 20/Sis, 36/ASIs, 75/Head Constables and 748/Constables which is also on higher side in view of the provisions of rule 2.2.of PPR.” Mr. Rajive Atma Ram, Mr. Kamlesh Kumar, Mr. Jaivir Yadav, Mr. Girish Agnihotri, Mr. S.N. Yadav and Mr. R.S. Bains, learned counsels for the petitioners have argued that there is ample power conferred on the Director General of Police by Section 12 of the Police Act, 1861 (for brevity, ‘the Act’), to frame Rules and Orders in relation to the organization, classification and distribution of the police force including the place where the member of the police force were to reside. It also confers on the Director General of Police the power to classify the duties to be performed by them which is of course subject to approval of the State Government. 15 C.W.P. No. 5041 of 2006 Learned counsel have also contended that Rule 1.3 of the Rules also confer upon the Director General of Police wide administrative powers to divide administrative establishment and other organization. He has also been given the power subject to the approval of the State Government to add such other cadres from time to time as per the need of the vacancies. It has been pointed out that in Rule 1.3 of the Rules the use of expression ‘with the approval of the State Government’ would necessarily mean prior approval but the expression has to be construed in the light of such expression employed in Section 12 of the Act, which uses the expression ‘subject to the approval of the State Government’. The argument further is that any order passed by the Director General of Police by virtue of Section 12 of the Act could be approved by the State Government at a later stage. In other words, the order can come into force and operate even without the approval of the State Government, which could be accorded later on. In support of their submissions, learned counsel have placed reliance on paras 4 to 6 of the judgment of Hon’ble the Supreme Court in the case of U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd., AIR 1996 SC 114. Reliance has also been placed on para 37, 38, 39 to 40 of the judgment of Hon’ble the Supreme Court in the case of High Court Judicature for Rajasthan v. P.P. Singh, (2003) 4 Supreme Court Cases 239, to raise an argument that when provision is made subject to approval of the authority then any action taken would hold good. Reliance has also been placed on a Full Bench judgment of the Assam and 16 C.W.P. No. 5041 of 2006 Nagaland High Court in the case of U.G. Koring v. State, AIR 1971 A. & N. 129. Mr. Rajive Atma Ram has also argued that a perusal of order dated 11.3.2003 (Annexure P-3) would show that the Director General of Police had endorsed a communication to the Government and it was up to the Government to approve or to disapprove the addition and conversion of male cadre posts into female cadre posts. He has submitted that in any case the petitioners now fulfill the requirement of Rule 13.14(2) of the Rules, inasmuch as, they have acquired requisite experience of five years of working on the post of Sub Inspector. On the aforementioned basis, it is sought to be submitted that the order dated 11.3.2004 issued by the Director General of Police diverting the various posts from male cadre to female cadre were to hold good and no prior approval of the State Government was required. It has been submitted that the proper interpretation of Section 12 of the Act read with Rule 1.3 of the Rules would be only one that no prior approval was required to be accorded and it was to continue till its disapproval by the Government, which has never been done. Learned counsel have argued that till date there is no disapproval accorded by the Government. The withdrawal of the aforementioned order by the Director General of Police, vide order dated 10.1.2006 (Annexure P-5), is bad in the eyes of law as disapproval can only be made by the Government. In that regard, learned counsel has made a reference to the original record showing 17 C.W.P. No. 5041 of 2006 the correspondence between the Director General of Police and the State which eventually culminated in directing the Director General of Police vide letter dated 17.1.2006 (at page 325 of Correspondence File) to proceed at its own level by withdrawing the order dated 11.3.2004. Learned counsel have also attacked the