Delhi High Court
Rajveer Singh vs Uoi & Ors. on 23 August, 2013
Author: V. Kameswar Rao
$~1 to 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: August 23, 2013
+ W.P.(C) 6313/2012
RAJ KUMAR JHA AND ORS ..... Petitioners
Represented by: Mr.A.K.Behera, Advocate
versus
UNION OF INDIA AND ORS ..... Respondents
Represented by: Mr.Himanshu Bajaj, Advocate
for R-1 & R-2
Ms.Megha Bharara, Advocate
for Ms.Ruchi Sindhwani,
Advocate for GNCTD
W.P.(C) 6366/2012
RAVINDER KUMAR PANDEY ..... Petitioner
Represented by: Mr.A.K.Behera, Advocate
versus
UOI & ORS. ..... Respondents
Represented by: Mr.Himanshu Bajaj, Advocate
for R-1 & R-2
Ms.Sana Ansari, Advocate for
Ms.Zubeda Begum, Advocate
for R-3
W.P.(C) 6365/2012
RAJVEER SINGH ..... Petitioner
Represented by: Mr.A.K.Behera, Advocate
W.P.(C) 6313/2012 & connected matters Page 1 of 12
versus
UOI & ORS. ..... Respondents
Represented by: Mr.Himanshu Bajaj, Advocate
for R-1 & R-2
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (Oral)
1. Three Original Application Nos.2367/2012, 2368/2012 and
2369/2012 filed by three individual applicants were disposed of by the
Central Administrative Tribunal by a common order dated September 21,
2012.
2. Against the common order, one writ petition bearing No.6313/2012
was initially filed by all the three writ petitioners. Subsequently the other
two writ petitioners namely Ravinder Kumar Pandey and Rajveer Singh
have filed separate writ petitions which are numbered as W.P(C) 6365/2012
and W.P(C) 6366/2012. They have not got their names deleted in W.P.(C)
6313/2012. Be that as it may, since the issue involved in the three writ
petitions is common, with identical facts, they are being disposed of by this
common order.
3. The petitioners herein are officers working in Junior Administrative
Grade-I of the Delhi Andaman and Nicobar Island Police Service (DANIPS)
and are posted as Deputy Commissioners of Police under the Government
of NCT of Delhi.
4. Vide order dated June 25, 2012, issued by the Ministry of Home
Affairs, Government of India, petitioner No.1 Raj Kumar Jha was
transferred to Daman, Diu, Dadar and Nagar Haveli, petitioner No.2
Sh.Rajveer Singh Chauhan was transferred to Lakshadweep and petitioner
No.3 Ravinder Kumar Pandey was transferred to Andaman and Nicobar
Island.
5. They challenged the transfer on various counts and the respondents
defended the action by relying upon Rule 4(ii) of the „National Capital
Territory of Delhi, Andaman and Nicobar Island, Lakshwadeep, Daman and
Diu and Dadar and Nagar Haveli Police Service Rules, 2003‟ (hereinafter
referred to as the Rules of 2003) with reference to a transfer policy framed.
6. The Tribunal dismissed the Original Applications by inter alia holding
that a DANIPS Officer in Junior Administrative Grade are liable to be
transferred from one administration to the another. Further, it has been held
that it is for the Competent Authority to take a view regarding utilization of
the services of the employee/officer subjected to its command and control.
7. Even though the Tribunal has upheld the transfer order June 25,
2012, it has directed the Secretary, Ministry of Home Affairs, to examine
and consider the following factual position and communicate the decision
to the petitioners:-
(i) the transfer and posting of DANIPS Officer in JAG Grade-1 to
outline segment is not routine and normal phenomenon;
(ii) the letter of the administration of Daman and Diu which has
expressed that it is difficult for the administration to pay salary
to the JAG level officer;
(iii) the letter of the Lakshadweep Administration which indicated
that the Ministry of Finance has not agreed for creation of the
post of Additional Superintendent of Police.
8. Mr.A.K.Behera, learned counsel for the petitioners would submit that
the impugned order of the Tribunal is liable to be set aside on three counts,
one of which is purely legal and would urge that if this Court were to agree
with the first contention urged, he may not even be called upon or required
to urge the second and the third. It is thus agreed that at the first instance we
would hear arguments on the first point and if we find no merit therein only
then would we be hearing the other two points.
9. The point urged is with reference to Rule 2(j), 12 and 13 read with
Schedule I of the Rules of 2003. Accordingly, we note Rule 2(j), 12 and 13
as also Schedule I to the Rules; and simultaneously we would also note Rule
4 for the reason learned counsel for the respondents relied upon the said
Rule. They read as under:-
"Rule 2(j) "duty post" means any post included in Schedule 1.
Rule 4(1) The duty posts included in the various grades, their
number and the scales of pay on the date of commencement of these
rules shall be as specified in Schedule 1.
Provided that ten per cent and twenty per cent of the sanctioned
strength of the posts in the service shall be non functional grades of
Junior Administrative Grade-1 and Selection Grade respectively,
and these shall be operated within the respective number of posts
specified in Parts B and C of Schedule 1.
Provided further that the number of posts in Junior Administrative
Grade 1 shall not exceed the total number of sanctioned posts in the
Junior Administrative Grade in the scale of pay of Rs.12,000-
16,500.
4(2) Notwithstanding anything contained in sub-rule(1), the
Government may:
(a) from time to time, make temporary additions or alterations
to the duty posts in various grades;
(b) in consultation with the Commission include in the Service
such posts as are be deemed to be equivalent to the posts included
in the Service in status, grade, scale of pay and professional content
or exclude from the Service a duty post already included in the
Service, and in consultation with the Commission appoint the
regular incumbent of the post which has been included in the
Service as a duty post to the appropriate grade of the Service and
fix his seniority taking into account the regular service rendered by
him in the said post or analogous grade.
Rule 12: Every member of the Service allocated to an
Administration shall unless he is appointed to an ex-cadre post, or
is otherwise not available for holding a duty post owing to the
exigencies of the public service, be posted against a duty post under
the Administration by the Administrator concerned.
Rule 13: The government shall, from time to time, allocate a
member of the Service to any Administration for posting in terms of
rule 12."
10. The Schedule I to the Rules of 2003 as amended in the year 2009
reads as under :-
"SCHEDULE 1"
{see rule 4(1)}
Name, number and scale of pay of duty posts in the various grades of
the National Capital Territory of Delhi, Andaman and Nicobar Islands,
Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Police Service.
Part A Grades and sanctioned strength of the service
(a) Grades of the service Pay Band Scale of Pay Grade Pay
(1) Junior Administrative PB-4 Rs.37400-67000 8700
Grade-I (Group A)
(2) Junior Administrative PB-3 Rs.15600-39100 7600
Grade-II (Group A)
(3) Selection Grade PB-3 Rs.15600-39100 6600
Grade-1 (Group A)
(4) Entry Grade PB-2 Rs.9300-34800 4800
(Group A) (on initial
appointment)
PB-3 Rs.15600-39100 5400
(on completion
of four years
approved service
subject to
vigilance and
integrity clearance)
(b) Sanctioned strength
National Capital Territory of Delhi
(2) Specific posts under Andaman and Nicobar 10
Islands Administration
Administration
Administration
Haveli Administration
(c) Reserves
xxxx
Part B Posts in the Junior Administrative Grade I and
Junior Administrative Grade II
Posts under Government of the
National Capital Territory of Delhi
(i) Additional Deputy Commissioner
(ii) Additional Deputy Commissioner
of Police (Delhi Armed Police Battalion) 10
(iii) Additional Deputy Commissioner
(iv) Additional Deputy Commissioner of Police
(v) Vice-Principal, Police Training College 1
(vi) Additional Deputy Commissioner of Police
(vii) Additional Deputy Commissioner of Police
(viii) Additional Deputy Commissioner of Police
(ix) Additional Deputy Commissioner of Police
(x) Additional Deputy Commissioner of Police
(xi) Additional Deputy Commissioner of Police
(xii) Additional Deputy Commissioner of Police
(xiii) Additional Deputy Commissioner of Police
(xiv) Additional Deputy Commissioner of Police
xxxx
Part C Posts in Entry Grade and Selection Grade
(a) Posts under the Government of National
Capital Territory of Delhi
(b) Posts under the Andaman and Nicobar
Administration
(c) Posts under the Lakshadweep Administration
(d) Posts-under the Daman and Diu Administration
(e) Posts under the Dadra and Nagar Haveli
Administration
Total of (a), (b), (c), (d) and (e) of Part C
GRAND TOTAL 434"
11. According to Mr.A.K.Behera, learned counsel for the petitioners, in
the absence of any corresponding duty post earmarked in the other
administrations, the petitioners could not have been transferred to any other
administration for the reason Rule 2 (j) defines a duty post to mean any post
included in Schedule I and a perusal of Schedule I would reveal that
pertaining to Junior Administrative Grade I and Junior Administrative Grade
II which are Group A posts allocation only is under the Government of
National Capital Territory of Delhi and no other administration and thus
counsel urges that petitioners being officers in the Junior Administrative
Grade I cannot be sent to the places where they have been transferred. He
would further state that the reliance placed by the respondents on the
transfer policy which at the most is in the nature of administrative guidelines
cannot supersede the statutory rules.
12. Mr.Himanshu Bajaj, learned counsel appearing for respondent Nos.1
and 2 would justify the transfer by placing reliance on Rule 4(2) which is an
enabling provision empowers the Government to make temporary additions,
alterations to the duty post in various grades in consultation with the
Commission.
13. On a specific query by us, whether the power under Rule 4 has been
exercised by the Government in this case, Mr.Bajaj would answer in the
negative.
14. A conjoint reading of Rule 2(j), Rule 12 & Schedule 1 of the Rules
would reveal that every member of the service allocated to the
Administration shall be posted against a duty post under the administration
by the Administrator concerned. The only exception being, if a member is
posted :
(i) to an ex-cadre post;
(ii) or not available owing to exigencies of the public service;
15. It is seen that there are no duty post of the level of Junior
Administrative Grade-1 and Junior Administrative Grade-II (prescribed in
the Schedule to the Rules) with regard to the other administrations i.e.
Lakshadweep, Andaman and Nicobar Islands, Daman and Diu and Dadra
and Nagar Haveli. A perusal of schedule 1, noted in para 10 above, would
reveal that only in Delhi, post in JAG-I and JAG-II are enlisted. That
pertaining to duty post, JAG-I and JAG-II level officers can be posted only
in Delhi.
16. We agree with the submissions made by Mr.A.K.Behera, learned
counsel for the petitioners that the Rules being statutory in nature and
governing the appointment, posting, allocation, disqualification of a member
of DANIPS, the transfer must be regulated under the Rules of 2003. Nothing
has been shown to us from Schedule I of the Rules of 2003 that a
corresponding/equivalent duty post of the level of Junior Administrative
Grade-I or Junior Administrative Grade-II exist at the places where the
petitioners have been transferred. It is a settled position in service
jurisprudence that appointment pre-supposes existence of a post. It is noted
that while exercising power under Rule 4(2) by the Government the relevant
considerations for making any temporary addition or alteration to the duty
posts in various grades are status, scale of pay and professional content.
17. In the absence of a corresponding equivalent duty post would make
the transfer of the petitioners to the places as referred to in the transfer order
as illegal and contrary to the rules. We hold so.
18. Now, the contention that sub Rule (2) of Rule 4 empowers the
Government to make additions or alterations to the duty post in various
grades, does not take the respondents to any where for the reason nothing
has been shown to us that exercising power under the said sub Rule the
Government has made temporary additions or alterations to the duty posts
by amending Schedule I, which as of today continues to list duty post in
Junior Administrative Grade I and Junior Administrative Grade II only
under the Government of NCT Delhi. Of course, if the Government were to
amend the Schedule by exercising the power under sub Rule (2) of Rule 4
and would create/list duty post in other Union Territories, the position
would be entirely different. But then the Government has to exercise said
power.
19. The submission of Mr.Bajaj that the pay and other conditions of
service of the petitioners would not be effected does not appeal us. What is
of relevance is whether any duty post exist at the places where the
petitioners have been transferred, to post them, the answer way to is 'No'.
20. The reliance placed by Mr.Bajaj on the policy also does not appeal us
since the same cannot supersede the Rules of 2003 which govern the posting
and other conditions of service of a DANIPS Officer. We find that the
Tribunal has totally erred in upholding the transfer order.
21. We set aside the order of the Tribunal dated September 21, 2012 in
Original Application Nos.2367/2012, 2368/2012 and 2369/2012 and allow
the Original Applications and set aside the orders of transfer dated June 25,
2012. We make it clear that since the writ petitions have been decided only
on one ground as urged by Mr.A.K.Behera, the other grounds are left open
to be urged if the occasion arises.
22. The writ petitions are accordingly disposed of.
23. No costs.
C.M No.5753/2013 in W.P.(C) 6313/2012
C.M No.5754/2013 in W.P.(C) 6365/2012
C.M No.5783/2013 in W.P.(C) 6366/2012
Dismissed as infructuous.
(V.KAMESWAR RAO)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
AUGUST 23, 2013
km
