Punjab-Haryana High Court
Si Shri Bhagwan vs State Of Haryana And Others on 28 March, 2025
Neutral Citation No:=2025:PHHC:043178
CWP-29381-2018 (O&M) & connected cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
302 (15 cases) CWP-29381-2018 (O&M)
Date of Decision: 28.03.2025
SI Shri Bhagwan ...Petitioner
Versus
State of Haryana and others ...Respondents
With
Sr. Case No. Petitioner(s) Respondent(s)
No.
2. CWP-25527-2014 Ramesh Chand State of Haryana and
(O&M) others
3. CWP-16703-2019 Rajender Singh State of Haryana and
others
4. CWP-19651-2019 Satbir Singh State of Haryana and
(O&M) others
5. CWP-20662-2015 Sunil Kumar State of Haryana and
others
6. CWP-1848-2016 Hazir Khan State of Haryana and
others
7. CWP-1865-2016 Jan Mohd. State of Haryana and
others
8. CWP-22076-2017 Rajesh Kumar State of Haryana and
others
9. CWP-24711-2016 Mangat Ram State of Haryana and
others
10. CWP-25852-2017 Vinod Kumar State of Haryana and
others
11. CWP-33473-2018 Virender Singh State of Haryana and
and others others
12. CWP-372-2018 Prithvi Raj State of Haryana and
others
13. CWP-8196-2016 Duli Chand State of Haryana and
others
14. CWP-21226-2019 Bhim Singh State of Haryana and
(O&M) others
15. CWP-29631-2018 Tara Chandh State of Haryana and
(O&M) others
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Present: - Mr. Jai Vir Yadav, Senior Advocate with
Mr. Suresh Kumar Redhu, Advocate for the petitioner(s)
Ms. Palika Monga, Deputy Advocate General, Haryana
***
JAGMOHAN BANSAL, J. (Oral)
1. As common issues are involved in the above captioned
petitions, with the consent of both sides, the same are hereby disposed of by
this common order. For the sake of brevity and convenience, facts are
borrowed from CWP-29381-2018.
2. The petitioner through instant petition under Articles 226/227
of the Constitution of India is seeking setting aside of notice dated
10.11.2018 (Annexure P-24) whereby respondent has proposed to withdraw
his service benefits extended in Commissionerate, Gurgaon and order dated
14.09.2018 (Annexure P-23) whereby Commissioner of Police Gurgaon has
been directed to take action in accordance with policy dated 07.10.2010
instead of policy dated 12.11.2012. He is further seeking direction to
respondents not to disturb his seniority in Police Commissionerate, Gurgaon
because he was confirmed as Head Constable w.e.f. 31.08.2006 in District
Gurgaon.
3. The State of Haryana, for the purpose of administration has
been divided into different Ranges which includes Gurgaon
Commissionerate. The said Commissionerate was earlier known as Gurgaon
Range and comprised of four Districts namely Gurgaon, Faridabad, Rewari
and Mahendergarh. The State Government on 26.04.2005 carved out District
Mewat from District Gurgaon. Similarly, District Palwal was carved out
from District Faridabad on 03.01.2006. District Gurgaon was designated as
Police Commissionerate, Gurgaon on 08.06.2007. District Faridabad was
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also designated as Police Commissionerate, Faridabad on 01.08.2009. South
Range, Rewari was formed on 01.08.2009 which comprised of District
Rewari, Mewat, Mahendergarh and Palwal. On account of bifurcation of
District Gurgaon and Faridabad into four Districts i.e. Gurgaon, Mewat,
Faridabad and Palwal, the Police Officers posted in District Gurgaon and
Faridabad came to be vertically bifurcated into four Districts. Few officers
remained in Gurgaon or Faridabad and remaining formed part of new
Districts i.e. Mewat and Palwal. A dispute arose with respect to lien of Head
Constables and Constables. As per normal Rule, if an officer is shifted from
one District to another, he holds lien on his parent District. As there was
bifurcation of one District into two, the question arose with respect to lien of
Constables/Head Constables. There was an opinion that lien should be
linked with the date of passing B-I Test or date of confirmation. Another
opinion was to link with the date of bifurcation of the District. To resolve the
controversy, a Committee of 6 Officers which comprised of 5 I.P.S. and one
H.P.S. was constituted. The Committee deliberated on different aspects and
submitted its report to the Director General of Police, Haryana (for short
‘DGP’) who approved the report. The report of the Committee became
policy dated 07.10.2010 with respect to lien of Police Personnel in Police
Commissionerate, Gurgaon, Faridabad, South Range Rewari. The relevant
extracts of the report of the Committee are reproduced as below:
“5. The Committee has examined the division of liens in
chronological order. First of all Gurgaon district was bifurcated
into Gurgaon and Mewat districts on 26.4.05. All existing posts
against police units like Police Stations, Police Posts, Office of DSP,
CIA units in the area of newly created district of Mewat were
already sanctioned from time to time as manpower was posted and
working in the said police units on the date of creation of new
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district i.e. 26.4.2005. The Committee has had detailed deliberations
to decide the cut off date for bifurcation of existing Gurgaon district
cadre into two cadres of district Gurgaon and district Mewat. The
Committee finds that the date of creation of new district of Mewat
i.e. 26.4.2005 is the most appropriate cut off date to bifurcate lien of
police officials of these two units of Gurgaon and Mewat.
Consequently, all Constables and Head Constables who were posted
in the jurisdiction of new district i.e. Mewat on 26.4.2005 will have
their lien with new district w.e.f. 24.4.05 whereas all Constables/
Head Constables posted in Gurgaon district will continue to have
their lien with Gurgaon district. Similarly, Head Constables posted
in these two districts on 26.4.2005, will be deemed to have been
enlisted in List ‘B’ and passed their Lower School Course, have got
their enlistment in List ‘C’ from the respective two districts i.e.
district Gurgaon and Mewat, w.e.f. date of such enlistment.
6. A new Police District Faridabad (Rural) at Palwal, later on
renamed as District Palwal, was created/carved out from erstwhile
District Faridabad on 03-01-06. Therefore, as decided in previous
case, all ORs (Ct and HCts) who were posted in the jurisdiction of
new Police District i.e. Faridabad (Rural) on 03-01-06, will have
their lien with the new district, whereas all ORs posted in the
remaining Faridabad district will continue to have lien with the
Faridabad District. Similarly, Head Constables posted in these two
districts on 3.01.06, will be deemed to have been enlisted in List ‘B’,
passed their Lower School Course, and have got their enlistment in
‘C’ list from the respective two districts i.e. Faridabad and
Faridabad (Rural) at Palwal w.e.f. date of such enlistment.
(ii) The Police Commissionerate, Gurgaon for the area falling
within the limits and jurisdiction of revenue district of Gurgaon was
established on 08-06-2007. The Police Commissionerate, Gurgaon
was further designated as police range for the purpose of
administration of Police force. The remaining districts i.e.
Faridabad, Rewari, Mewat at Nuh, Mahendergarh at Narnaul and
Faridabad (Rural) remained in the old Gurgaon Range, which was
subsequently renamed as Faridabad Range on 01.02.08. Therefore
all NGOs (ASIs/SIs) who were posted in the jurisdiction of district
Gurgaon as on 08.06.07, will have lien with Police Commissionerate
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of Gurgaon and all those NGOs who were posted in district of
Faridabad, Rewari, Mewat, Narnaul and Faridabad (Rural) as on
08.06.07, will have their lien with Gurgaon Range (Later renamed
as Faridabad Range). The enlistment of such NGOs (ASIs/SIs) in list
‘D’ and ‘E’ shall be deemed to have been done in the Range of their
lien w.e.f. date of such enlistment.
(iii) Police Commissionerate, Faridabad for the area falling
within the limits and jurisdiction of revenue district of Faridabad
was established on 01.08.2009. The Police Commissionerate of
Faridabad was further designated as a Police Range for the purpose
of administration of Police force. A new police range by the name of
South Range with Hqr at Rewari consisting of districts of Rewari,
Mewat at Nuh, Mahendergarh at Narnaul and Palwal (Police
district Faridabad, Rural) was established w.e.f. 01.08.2009. All
NGOs (ASIs/SIs) who were posted in the jurisdiction of district
Faridabad on 01.08.09 will have their lien with the Police
Commissionerate of Faridabad and all those NGOs who were posted
in district of Rewari, Mewat at Nuh, Mahendergarh at Narnaul and
Palwal on 01.08.2009 will have their lien with the new police range
i.e. South Range. The enlistment of such NGOs (ASIs/SIs) in list ‘D’
and ‘E’ shall be deemed to have been done in the Range of their lien
w.e.f date of such enlistment.
(iv) Henceforth, service matters of all Police Personnel (Constable
to SI) posted in erstwhile Gurgaon Range shall be decided in
accordance with division of cadres as mentioned above, by all
Districts and Police Ranges, now in existence.”
4. The respondent-DGP vide communication dated 14.09.2018
directed Commissioner of Police, Gurugram to fix lien of petitioner as per
policy dated 07.10.2010. Commissioner of Police, Gurugram issued
impugned notice dated 10.11.2018 calling upon the petitioner to show cause
as to why service benefits given to him should not be withdrawn.
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5. The seniority of the petitioners is proposed to be disturbed in
the wake of policy dated 07.10.2010 (Annexure P-10). The petitioners are
assailing notices as well as said policy on the following counts: –
i.) The policy was framed by the DGP who is not a
competent authority to frame policy with respect to
seniority of police officials;
ii.) The impugned policy is contrary to policy dated
12.11.2012; and
iii.) There cannot be two different policies in two different
Ranges/Commissionerates.
6. This Court while issuing notice of motion on 20.11.2018 stayed
proceedings pursuant to show cause notice dated 10.11.2018 (Annexure
P-24).
7. In order dated 24.05.2022 arguments of petitioners were noticed
and Additional Chief Secretary to Government of Haryana, Home
Department was asked to assist the Court. The order dated 24.05.2022 reads
as: –
“The sole grievance of the petitioners in this bunch of
petitions would be variance in the two policies regarding lien to be
maintained.
It is argued that policy dated 12.11.2012 had been formulated
pertaining to the Executive Cadre as well as Executive Clerical
Cadre which was to be made applicable throughout State of
Haryana. However, Government has decided to retain the policy
pertaining only to the Executive Clerical Cadre.
Learned counsel for the petitioners herein would contend that
the two policies which are being adopted at the moment have caused
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approval to policy dated 12.11.2012 or any other policy which is
adopted and made applicable to the entire State of Haryana, the said
confusion would not be prevalent.
It is noted that the policy is being made applicable at the
behest of the DGP who would not be the competent person to issue
directions thereunder.
Learned State counsel seeks some time to get necessary
instructions in this regard.
Adjourned to 09.08.2022.
On the next date of hearing, let a responsible officer of the
cadre of Additional Chief Secretary to the Government of Haryana,
Home Department, be present in the Court to assist the Court on the
point being raised.
A photocopy of this order be placed on the files of connected
cases.”
8. The respondent pursuant to aforesaid order has filed affidavit
dated 23.01.2023 justifying competence of DGP to issue impugned policy
and grounds for distinction with policy of 2012.
9. Mr. Jai Vir Yadav, Senior Advocate and Mr. Suresh Kumar
Redhu, Advocate submit that service of the petitioners is governed by
Haryana Police Act, 2007 (for short ‘Police Act‘) read with Punjab Police
Rules, 1934 (as applicable to State of Haryana) (for short ‘PPR’). Rule 12.1,
12.3, 13.1, 13.7, 13.8 of PPR govern appointment, promotion, training and
seniority of officers of subordinate ranks. The Rules have been made by the
Legislature. The impugned policy has actually been framed by a Committee
of Officers and for name sake approved by DGP. Even if it is considered as
policy framed by DGP, it is bad in the eye of law because he has no
jurisdiction to frame policy with respect to lien of officers as it directly
affects their seniority and promotion.
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The respondent has framed policy dated 12.11.2012 with
respect to Ambala-Panchkula Commissionerate and Karnal Police Range.
Lien in the policy dated 12.11.2011 has been linked with date of passing B-1
Test and date of confirmation as Head Constable whereas in the impugned
policy, it has been linked with the date of creation of new Districts. The
respondent cannot frame two different policies for two different ranges. It
amounts to violation of principle of uniformity and consistency. Same rank
of officers working in one State cannot be treated differently. The
respondent framed policy for Executive Clerical Police Cadre with respect to
their lien. The said policy was challenged before this Court by way of CWP
No.3595 of 2013, ASI Vinod Kumar and others v. State of Haryana and
others. A Division Bench of this Court vide order dated 17.05.2016 directed
the respondent to revisit its policy decision and frame uniform criteria for all
the Ranges and Commissionerates. Additional Chief Secretary, Home
Department was directed to convene a joint meeting of the stakeholders
including the Commissioners of Police/Inspector Generals of Police of
different Ranges and revisit/remodulate the policy. In the wake of direction
of this Court, respondent framed uniform policy for Executive Clerical
Cadre with respect to their lien and seniority. In the wake of said judgment,
the respondent was bound to frame uniform policy for Constables/Head
Constables.
The impugned policy has been made applicable from
retrospective effect whereas it is settled proposition of law that any
instruction/circular cannot be retrospective if it adversely affects rights of the
parties. The respondent at the time of bifurcation of District Gurugram and
Faridabad did not seek option from affected officers. It was unilateral
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decision of the respondent to depute the officers in the newly created
Districts. The jurisdictional authorities have withdrawn already granted
benefit of seniority on the direction of DGP. The lower authorities are bound
to follow the direction of DGP who without authority has directed
jurisdictional authorities to withdraw benefit of seniority already granted.
10. Per contra, Ms. Palika Monga, Deputy Advocate General,
Haryana, submits that there was no provision in PPR with respect to lien of
Police Officers on account of bifurcation of Districts. If a District is
merged/de-merged with a Range or a Police Officer is transferred from one
District to another, problem does not arise, however, issue arose on account
of bifurcation of District Gurugram and Faridabad into two Districts each.
As PPR were silent, the DGP invoked its power under Section 50(p) of
Police Act. A Committee was constituted to submit its report with respect to
lien of officials who came to be vertically bifurcated on account of division
of one District into two. The DGP has issued impugned policy in exercise of
power conferred by Section 50(p) of Police Act. The DGP was quite
competent to frame impugned policy, thus, ground of petitioners to
challenge policy on the ground of competence is unsustainable.
With respect to contradiction between policy of 2010 and 2012,
learned State counsel further submits that policy dated 07.10.2010 adverted
to situation arising on account of bifurcation of one District into two
whereas there was no such issue with respect to Ambala-Panchkula
Commissionerate and Karnal Range. The officers forming part of Ambala-
Panchkula Commissionerate and Karnal Range remained part of their parent
District, thus, there was no question to link their lien with the date of
bifurcation of District. The situation in the case of Gurugram Range was
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entirely different as compared to situation of Karnal Police Range. The
respondent has wrongly claimed parity with Executive Clerical Cadre. The
Executive Clerical Cadre personnels are always posted in District Police
Offices, hence, no Executive Clerical Cadre personnel was posted in District
Mewat and Palwal which were carved out from District Gurugram and
Faridabad respectively. In view of the directions of this Court passed in ASI
Vinod Kumar (supra), the Government vide letter dated 04.07.2017 decided
to retain policy dated 12.11.2012 regarding fixation of lien and seniority of
Executive Clerical Cadre and made it applicable throughout the State. The
criteria of place of posting of Constables/ Head Constables is different from
Executive Clerical Cadre personnels, thus, policy applicable to Executive
Clerical Cadre personnels cannot be made applicable to Constables/Head
Constables.
11. I have heard the arguments of learned counsel for both sides
and perused the record with their able assistance.
Statutory Provisions
12. From the perusal of record, it comes out that service of
petitioners is governed by Police Act and Rules made thereunder. The State
Government made Haryana Police (Non-Gazetted and Other Ranks) Service
Rules, 2017 (for short ‘2017 Rules’) which came into force w.e.f.
08.05.2017. 2017 Rules are inapplicable to the petitioners because those
Rules are applicable to officers directly recruited after publication of the
Rules and who have passed their Lower School Course after publication of
2017 Rules. The petitioners joined service much prior to 2017 Rules and
passed Lower School Course prior to publication of aforesaid Rules, thus,
their service is governed by PPR.
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Section 96 of Police Act provides that PPR shall be deemed to
have been framed under this Act till new Rules are framed. The State
Government till date has not framed Rules under Police Act, thus, services
of the petitioners are subjected to PPR. Section 92 of Police Act empowers
State Government to make Rules for carrying out purposes of the Act. Thus,
State Government can make any Rule for carrying out purposes of the Act.
As per Section 93, State Government has power to remove difficulties, if
arise, in implementation of the Act. The difficulty may be removed by way
of notification in the Official Gazette. Sections 92, 93 and 96 of the Police
Act are reproduced as below: –
“92. Power to make rules.- (1) The State Government may,
by notification in the Official Gazette, make rules for carrying
out the purposes of this Act.
(2) Every rule made under this Act shall be laid, as
soon as may be, after it is made, before the House of the State
Legislature, while it is in session. If the House agrees in
making any modification in the rule or the House agrees that
the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule.
93. Power to remove difficulties.- (1) If any difficulty arises
in giving effect to the provisions of this Act, the State
Government may, by notification in the Official Gazette, make
such provisions, as it deems necessary or expedient for
removing the difficulty.
(2) Every notification issued under this section shall,
as soon as may be after it is issued, be laid before the State
Legislature.
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96. Repeal and Saving.- (1) The Police Act, 1861 (Act 5 of
1861), in its application to the State of Haryana, is hereby
repealed.
(2) Notwithstanding such repeal, anything done or any
action taken or any proceeding instituted under the Act so
repealed and the rules made thereunder, shall be deemed to
have been done or taken or instituted under this Act.
(3) All references in any enactments to any of the
provisions of the Act so repealed shall be construed a
reference to the provisions of this Act.
(4) The Punjab Police Rules framed under the Police
Act, 1861 (Act 5 of 1861), as applicable to the State of
Haryana, shall be deemed to have been framed under this Act
till new rules are framed under this Act.”
13. Section 3 of Police Act provides that there shall be one police
service constituted by the State. Section 4 provides that police service shall
consist of such numbers of various ranks and have such organization or
cadres as the State Government may determine. Sub-Section (3) of Section 4
provides that pay, allowances, service conditions, mode of recruitment of
police personal shall be such as prescribed from time to time. Sections 3 and
4 of Police Act are reproduced as below: –
“3. Constitution of police service.- There shall be one Police
service for the State, constituted by the Police service State
Government under this Act. Notwithstanding anything
contained in any other law or any of the provisions of this
Act, members of the police service shall be liable for posting
anywhere in the State and outside the State as ordered by the
competent authority and to any branch of the service in the
State, including any of its specialised wings.
4. Organization and composition of Police service.- Subject
to the provisions of this Act,-
(1) the police service shall consist of such numbers in
various ranks and have such organization or cadres as the12 of 27
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State Government may, by general or special order,
determine and shall include the members of the Indian Police
Service allocated to the State;
(2) the direct recruitment to various gazetted and non-
gazetted ranks in the police service shall be made through a
State Level Police Recruitment Board or District Level Police
Recruitment Boards by a transparent process, adopting well
codified systems which shall be framed under this Act;
(3) the pay, allowances, service conditions, mode of
recruitment of the police personnel shall be such as may be
prescribed from time to time;
(4) police personnel shall at all times remain
accountable to the law and responsive to the lawful needs of
the people and shall observe codes of ethical conduct and
integrity.”
[Emphasis supplied]
14. Section 9 of Police Act provides for creation of Police Ranges.
It provides that State Government, may by notification, divide the entire
State into one or more Police Ranges. Each range shall comprise of two or
more Police Districts. Section 10 provides that State Government in
consultation with DGP may declare any area to be a Police District. The
administration of police throughout that District shall vest with
Superintendence of Police. Sections 9 and 10 are reproduced as below: –
“9. Creation of police range.- The State Government may, by
notification in the Official Gazette, divide the geographical
area of the State into one or more police ranges. Each range,
comprising two or more police districts, shall be headed by
an officer of the rank of Inspector General of Police who
shall supervise the police administration of the range and
report to the Director General of Police.
10. Police districts.- The State Government, in consultation
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the Official Gazette, declare any area within the State to be a
police district. The administration of the police throughout
such district shall vest in the Superintendent of Police of a
district who may be assisted by as many Additional, Assistant
or Deputy Superintendents of Police, as deemed necessary
and are notified.”
15. Rule 12.1 of PPR prescribes authorities empowered to make
appointments. Rule 12.1(4) provides that Inspectors shall be borne on
provincial roll. Sub-Inspectors and Assistant Sub-Inspectors shall be borne
on range rolls. Head Constables and Constables in each District shall be
borne on District rolls and shall receive District constabulary number. Rule
12.1(5) provides that Punjab Civil Service Rules shall be applicable with
respect to General Conditions of Service such as pay, pension, leave, joining
time and travelling allowance. Relevant extracts of Rule 12.1 are reproduced
as below: –
“12.1 Authorities empowered to make appointments.-
(1) to (3) XXXX XXXX XXXX XXXX
(4) Inspectors shall be borne on a provincial roll and shall
receive provincial constabulary numbers. Sergeants shall be
borne on a separate provincial roll and shall receive separate
provincial constabulary numbers.
Sub-inspectors and Assistant Sub-Inspectors shall be
borne on range rolls and shall receive range constabulary
numbers.
Head Constables and constables in each district shall
be borne on district rolls and shall receive district
constabulary numbers.
(5) In matters relating to general conditions of service
such as pay, pension, leave, joining time and traveling
allowance, the subordinate ranks of the Police force of the
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Rules, for the time being in force, in so far as they are not
inconsistent with the provisions contained in these rules.”
[Emphasis Supplied]
16. Rule 13 of PPR deals with promotion of Subordinate Rank
Officer. Rule 13.1 provides that promotion from one rank to another and
from one grade to another in the same rank shall be made by selection
tempered by seniority. For the purpose of regulating promotion amongst
enrolled police officers, six promotion lists i.e. A, B, C, D, E and F will be
maintained. Lists A, B, C, D and E shall be maintained in each District. List
‘E’ shall be maintained in the office of DIG and list F shall be maintained in
the office of IG. Relevant extracts of Rule 13.1 are reproduced as below: –
“13.1. Promotion from one rank of another.- (1) Promotion
from one rank to another, and from one grade to another in
the same rank, shall be made by selection tempered by
seniority. Efficiency and honesty shall be the main factors
governing selection. Specific qualifications, whether in the
nature of training courses passed or practical experience,
shall be carefully considered in each case. When the
qualifications of two officers are otherwise equal, the senior
shall be promoted. This rule does not affect increment within
a time-scale.
(2) Under the present constitution of the police force no
lower subordinate will ordinarily be entrusted with the
independent conduct of investigations or the independent
charge of a police station or similar unit. It is necessary,
therefore, that well-educated constables, having the attributes
necessary for bearing the responsibilities of upper
subordinate rank, should receive accelerated promotion so as
to reach that rank as soon as they have passed the courses
prescribed for, and has been tested and given practical
training in the ranks of constable and head constable.
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(3) For the purposes of regulating promotion amongst
enrolled police officers six promotion lists- A,B,C,D,E and F
will be maintained.
Lists A, B, C, and D shall be maintained in each
district as prescribed in rules 13.6, 13.7, 13.8 and 13.9 and
will regulate promotion to the selection grade of constables
and to the ranks of head constables and assistant sub-
inspector. List E shall be maintained in the office of Deputy
Inspector-General as prescribed in sub-rule 13.10 (1) and
will regulate promotion to the rank of sub-inspector. List F
shall be maintained in the office of the Inspector-General as
prescribed in sub-rule 13.15(1) and will regulate promotion
to the rank of inspector.
Entry in or removal from A,B,C,D or E lists shall be
recorded in the order book and in the character roll of the
police officer concerned. These lists are nominal rolls of
those officers whose admission to them has been authorised.
No actual selection shall be made without careful
examination of character rolls.
XXXX XXXX XXXX XXXX"
[Emphasis Supplied]
17. Rule 13.7 prescribes procedure for selection of Constables for
preparation of List ‘B’ which precedes their promotion to the rank of Head
Constable. As per Rule 13.7 read with Rule 13.8, a Constable is promoted to
the rank of Head Constable if his name is recorded in List ‘B’ and he passes
Lower School Course.
18. Learned counsel for the parties are ad idem that every
Constable has to undergo Lower School Course and seniority for the purpose
of promotion to the rank of Head Constable is maintained on the basis of
order of merit in Lower School Course. They get support from Rule 12(5) of
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2017 Rules for making aforesaid submission. For the ready reference Rule
12(5) of 2017 Rules is reproduced as below: –
“12. Seniority of enrolled police officers:-
(1) to (4) XXXX XXXX XXXX XXXX
(5) The seniority of all Lower School Course pass Constables
shall be determined as per merit achieved by them in the
Lower school course; which shall then become the foundation
for preparing the subsequent gradation lists and further
promotions to higher ranks.”
Judicial Precedents
19. The petitioners are assailing policy dated 07.10.2010 on the
ground of competence. Scope of interference in such matters has been
dilated on by different Courts including Hon’ble Supreme Court. Thus, it
would be apt to notice judicial precedents.
20. Hon’ble Supreme Court has time and again adverted to scope of
judicial interference in policy matters. A Constitutional Bench of Hon’ble
Supreme Court in Vivek Narayan Sharma Versus Union of India; 2023
LiveLaw (SC) 1, while adverting to question of legality of demonization of
currency of denomination of ₹500/- and ₹1,000/- has considered the scope of
judicial review. The Hon’ble Supreme Court has considered its judicial
precedents and concluded that it is not function of the Court to sit in
judgment over matters of economic policy and they must necessarily be left
to Government of the day to decide.
21. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703,
Supreme Court has held that absence of arbitrary power is the first essential
of the rule of law upon which whole constitutional system is based. In a
system governed by rule of law, discretion, when conferred upon, executive
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authorities must be confined within clearly defined limits. Discretion must
be guided by rule of law. It must not be arbitrary, vague and fanciful.
Supreme Court in E.P. Royappa v. State of T.N., (1974) 4 SCC
3 while dealing with claim of petitioner to the post of Chief Secretary in the
State of T.N. in terms of Indian Administrative Service Rules, 1954 evolved
the doctrine of arbitrariness and its application to State action as a distinct
doctrine on which State action may be struck down as being violative of the
rule of law contained in Article 14 of the Constitution of India. The relevant
extracts of the judgment read as: –
“85. The last two grounds of challenge may be taken up together for
consideration. Though we have formulated the third ground of
challenge as a distinct and separate ground, it is really in substance
and effect merely an aspect of the second ground based on violation
of Articles 14 and 16. Article 16 embodies the fundamental
guarantee that there shall be equality of opportunity for all citizens
in matters relating employment or appointment to any office under
the State. Though enacted as a distinct and independent fundamental
right because of its great importance as a principle ensuring
equality of opportunity in public employment which is so vital to the
building up of the new classless egalitarian society envisaged in the
Constitution, Article 16 is only an instance of the application of the
concept of equality enshrined in Article 14. In other words, Article
14 is the genus while Article 16 is a species. Article 16 gives effect to
the doctrine of equality in all matters relating to public employment.
The basic principle which, therefore, informs both Articles 14 and
16 is equality and inhibition against discrimination. Now, what is
the content and reach of this great equalising principle? It is a
founding faith, to use the words of Bose. J., “a way of life”, and it
must not be subjected to a narrow pedantic or lexicographic
approach. We cannot countenance any attempt to truncate its all-
embracing scope and meaning, for to do so would be to violate its
activist magnitude. Equality is a dynamic concept with many aspects
and dimensions and it cannot be “cribbed, cabined and confined”
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within traditional and doctrinaire limits. From a positivistic point of
view, equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a
republic while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and
is therefore violative of Article 14, and if it effects any matter
relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and ensure
fairness and equality of treatment. They require that State action
must be based on valid relevant principles applicable alike to all
similarly situate and it must not be guided by any extraneous or
irrelevant considerations because that would be denial of equality.
Where the operative reason for State action, as distinguished from
motive inducing from the antechamber of the mind, is not legitimate
and relevant but is extraneous and outside the area of permissible
considerations, it would amount to mala fide exercise of power and
that is hit by Articles 14 and 16. Mala fide exercise of power and
arbitrariness are different lethal radiations emanating from the
same vice: in fact the latter comprehends the former. Both are
inhibited by Articles 14 and 16.”
22. In State of Tamil Nadu and another v. P. Krishnamurthy and
others, 2006 (4) SCC 517, while dealing with Validity and scope of Rule
38A of the Tamil Nadu Minor Mineral Concession Rules, 1959, Supreme
Court in Para 12 expounded grounds to challenge subordinate legislation as
below:
“Whether the Rule is valid in entirety?
15. There is a presumption in favour of constitutionality or validity
of a sub-ordinate Legislation and the burden is upon him who
attacks it to show that it is invalid. It is also well recognised that a
sub-ordinate legislation can be challenged under any of the
following grounds:-
a) Lack of legislative competence to make the sub-ordinate
legislation.
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b) Violation of Fundamental Rights guaranteed under the
Constitution of India.
c) Violation of any provision of the Constitution of India.
d) Failure to conform to the Statute under which it is made or
exceeding the limits of authority conferred by the enabling
Act.
e) Repugnancy to the laws of the land, that is, any enactment.
f) Manifest arbitrariness/unreasonableness (to an extent where
court might well say that Legislature never intended to give
authority to make such Rules).
16. The Court considering the validity of a subordinate
Legislation, will have to consider the nature, object and scheme of
the enabling Act, and also the area over which power has been
delegated under the Act and then decide whether the subordinate
Legislation conforms to the parent Statute. Where a Rule is directly
inconsistent with a mandatory provision of the Statute, then, of
course, the task of the court is simple and easy. But where the
contention is that the inconsistency or nonconformity of the Rule is
not with reference to any specific provision of the enabling Act, but
with the object and scheme of the Parent Act, the court should
proceed with caution before declaring invalidity.”
In Cellular Operators Association of India and others v.
Telecom Regulatory Authority of India and others, (2016) 7 SCC 703,
Supreme Court while declaring Regulation framed under Telecom
Regulatory Authority of India Act, 1997 as ultra vires the Act held that the
impugned Regulation is manifestly arbitrary and unreasonable.
Findings
23. Learned State counsel has contended that impugned policy has been
framed by DGP while exercising power conferred by Section 50(p) of
Police Act. For the ready reference, Section 50 of the Police Act is
reproduced as below: –
“50. Regulations.-
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50. The Director General of Police shall be competent to
make regulations or issue orders, not inconsistent with the
provisions of this Act or the rule framed thereunder
regarding.-
(a) prevention and investigation of crime;
(b) maintenance of law and order;
(c) regulation and inspection of the police
organization and of the work performed by the
police officers;
(d) regulating the issue and use of arms and
ammunition;
(e) wearing of uniform;
(f) prescribed the places of residence of the
members of the police service;
(g) institution, management and regulation of any
Non-Government fund for the purpose
connected with the police administration or
welfare of police personnel;
(h) regulation, deployment, movements and
location of the police;
(i) assigning duties to officers of all ranks and
grades, and prescribing the manner and the
conditions subject to which, they shall exercise
and perform their respective powers and duties;
(j) regulating the collection and communication of
intelligence and information by the police;
(k) prescribing the records registers and forms to
be maintained and the returns to be submitted
by different police units and officers;
(l) community policing;
(m) functioning of police stations and other units;
(n) training of the police force and management of
training institutions;
(o) generally, for the purpose of administering this
Act and for rendering the police more efficient,
and preventing abuse of power or neglect of
duties by them;
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(p) covering any aspect of police administration
which is not covered under the provisions of
this Act or rules framed thereunder.”
[Emphasis Supplied]
24. From the perusal of above quoted section, it is evident that DGP
has power to make regulations or issue orders not inconsistent with the
provision of the Act and Rules framed thereunder, regarding any aspect of
the police administration which is not covered by the Act or Rules made
thereunder. As per aforesaid Section, DGP is empowered to make
regulations or issue orders. Learned State counsel is claiming that impugned
policy may be treated as ‘Order’ though it cannot be called as ‘Regulation’.
The petitioners are assailing impugned policy/order on the ground of
competence of DGP.
25. Article 309 of the Constitution of India permits Union as well
as State Legislature to make appropriate legislation to regulate recruitment
and conditions of service of their employees. Proviso to Article 309 provides
that it shall be competent for the President in case of posts connected with
affairs of Union and Governor, in case of posts connected with affairs of
State to make rules regulating the recruitment and conditions of service. The
Rules made by President or Governor hold the field till provisions are made
by appropriate legislature. Article 309 read as: –
“309. Recruitment and conditions of service of persons
serving the Union or a StateSubject to the provisions of this Constitution, Acts of
the appropriate Legislature may regulate the recruitment, and
conditions of service of persons appointed, to public services
and posts in connection with the affairs of the Union or of any
State:
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Provided that it shall be competent for the President or
such person as he may direct in the case of services and posts
in connection with the affairs of the Union, and for the
Governor of a State or such person as he may direct in the
case of services and posts in connection with the affairs of the
State, to make rules regulating the recruitment, and the
conditions of service of persons appointed, to such services
and posts until provision in that behalf is made by or under
an Act of the appropriate Legislature under this article, and
any rules so made shall have effect subject to the provisions
of any such Act.”
The Punjab Police Rules were made prior to implementation of
Constitution of India. As per Article 366 (10) of the Constitution of India,
these are ‘existing law’. Article 366 (10) is reproduced as below:
“existing law” means any law, Ordinance, order, bye-law, rule or
regulation passed or made before the commencement of this
Constitution by any Legislature, authority or person having power to
make such a law, Ordinance, order, byelaw, rule or regulation.”
26. From the perusal of PPR, Police Act and 2017 Rules (not
directly applicable to petitioners), it is evident that petitioners are Members
of ‘service’. PPR are in the form of complete Code which govern each and
every attribute of police officials. There are specific Rules for appointment,
promotion, transfer, disciplinary proceedings, superannuation, misconduct,
punishment, appeal/revision etc. The question of lien is directly linked with
seniority and promotion of the officers. On account of creation of new
Districts i.e. Mewat and Palwal, lien of many officers came to be disturbed
which directly affected their seniority and promotion, thus, question of lien
is integral part of service conditions. The afore-cited Rules make it clear that
appointment and promotion of police officers is governed by Rules. There is
no specific Rule with respect to lien on account of carving out of new
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District. Section 92 of Police Act empowers State Government to make
Rules for carrying out purposes of the Act. Section 93 empowers State
Government to remove difficulties. The respondent has exercised powers
under Section 50(p) of Police Act. This Court is of the considered opinion
that impugned policy could not be framed under Section 50(p) of Police Act,
on account of following reasons: –
i.) Article 309 of the Constitution of India provides that subject to
provisions of the Constitution, Acts of the appropriate Legislature may
regulate recruitment and conditions of service of persons appointed to Public
Service and posts in connection with affairs of the State. Entry 41 of the
State List of 7th Schedule read with Article 246 of the Constitution of India
empowers the State Government to make law with respect to State Public
Services and State Public Service Commission. Proviso to Article 309
empowers President to make Rules regulating the recruitment and conditions
of service of persons appointed to service and posts in connection with
affairs of the state.
From the conjoint reading of Entry 41 of State List of 7th
Schedule, Article 309 and its proviso, it is evident that the State Government
has power to make law regulating recruitment and conditions of service of
persons appointed to public services and posts in connection with affairs of
the State. Question of lien is directly linked with seniority and promotion of
police officers which is also evident from the impugned orders. Seniority
and promotion are integral part of conditions of service. As State
Government, as per Constitution of India, is empowered to regulate
conditions of service, the DGP could not make policy regulating conditions
of service of Subordinate Officers.
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ii.) PPR, as stated hereinabove, fall within definition of ‘existing
law’ as contemplated by Article 366(10) of the Constitution of India.
Competent Legislature has power to amend existing law, however, no law
can be made by any authority which is contrary to existing law. As per
Constitution Bench judgment in Pankajakshi v. Chanderika, (2016) 6 SCC
157, in case of inconsistency between existing law and law made by the
Parliament, the existing law would prevail.
Rule 13 of PPR specifically provides for promotion from the
rank of Constable to Head Constable. Rule 13.3 provides that at the level of
District, List A, B, C and D shall be maintained and these lists will regulate
promotion to the selection grade of Constables and to the ranks of Head
Constables and Assistant Sub-Inspectors. It means promotion from the rank
of Constable to Head Constable is governed by List A, B, C, D and E. The
respondent, contrary to Rule 13.1, has framed impugned policy governing
the promotion from the rank of Constable to Head Constable.
iii.) Rule 13.1 of PPR provides that promotion to the rank of
Constable to Head Constable shall be made by selection tempered by
seniority. The respondent, during the course of hearing, has conceded that
seniority is determined on the basis of merit in the Lower School Course.
The respondent by impugned policy has linked lien with the date of
bifurcation of District which is directly affecting seniority of
Constables/Head Constables. Thus, it is contrary to mandate of Rule 13.1.
iv.) The impugned policy is virtually decision of a Committee
comprising of different officers. DGP has approved report of the Committee,
however, he has not made any regulation or issued orders whereas under
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Section 50(p) of Police Act, he has power to make regulations or issue
orders. The respondent has not even mentioned in any part of the impugned
policy or covering letter produced by respondent that it has been framed
under Section 50(p) of Police Act.
v.) Section 4(3) of Police Act provides that pay, allowances,
service conditions, mode of recruitment of Police Personnel shall be such as
may be prescribed from time to time. Power under Section 4 can be
exercised by State Government. Lien being directly linked with
seniority/promotion is integral part of service conditions, thus, any provision
with respect to service conditions can be made either by way of Rules
framed under Section 4(3) of Police Act or would be governed by PPR or
Civil Service Rules. There is no question to regulate conditions of service by
way of orders issued by the DGP.
vi.) As per Section 50, power of DGP is subject to provisions of
Police Act as well as Rules made thereunder. From the preceding
paragraphs, it is evident that respondent has issued impugned order contrary
to Police Act, PPR as well as Constitution of India.
vii.) The respondent, during the course of hearing, has conceded that
impugned policy cannot be called as ‘Regulations’ made by DGP, however,
may be called as ‘Order’. As per Section 50(p) of Police Act, DGP has
power to issue orders covering any aspect of police administration.
Impression ‘police administration’ has not been defined under Police Act or
PPR, however, from the reading of Section 8, 9 and 10 of Police Act, it is
evident that police administration means creation of Police
Commissionerates, Police Ranges and Police Districts for the purpose of
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administration. Thus, in the name of police administration, the respondent
has no power to issue orders under Section 50(p) governing service
conditions of the subordinate rank officers.
viii.) From the perusal of different clauses of Section 50 of Police
Act, it is evident that DGP has power to control, manage and regulate
members of service for the maintenance of law & order and proper
administration. He has no power to regulate conditions of service of police
officers.
27. In the wake of above discussion and findings, this Court is of
the considered opinion that impugned policy/order has been issued by DGP
beyond his jurisdiction, thus, it is invalid. Consequently, impugned notice(s)
issued relying upon policy/order dated 07.10.2010 are hereby set aside.
Since the petitions are allowed on the ground of validity of policy/order
dated 07.10.2010, other issues raised by the petitioners are not adverted to.
28. Present petitions are allowed in above terms.
29. Before parting with the judgment, this Court would hasten to
add that it has adjudicated question of validity of policy/order dated
07.10.2010 issued by DGP, thus, reply and presence of State Government
was inevitable. There was no need to hear officials other than petitioners
who had obtained benefits from the said policy/order.
30. Pending application(s), if any, shall stand disposed of.
(JAGMOHAN BANSAL)
JUDGE
28.03.2025
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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