Smt. Iqbal Kaur and Others vs State of Haryana and Others

Jawahar Lal Gupta, J.—These three writ petitions raise a common question - Can the restructuring of a cadre by an administrative order lead to annulling of promotions etc. already made? Learned counsel for the parties have referred to the facts and averments made in Civil Writ Petition No. 15640 of 1994. These may be briefly noticed.

The three petitioners in this case as also in the other two cases are working in the Police Department. Petitioner No. 1 Smt. Iqbal Kaur was enrolled as a Constable in the Haryana Police on December 1, 1976. She was brought on promotion list C on April 12, 1985. On January 24, 1986, she was promoted as a Head Constable and confirmed as such on January 31, 1988. Her name was included in promotion list ''D'' on November 3, 1989. She was simultaneously promoted as an Assistant Sub Inspector in November 1989. Thereafter, her name was included in List ''E'' on July 31, 1991. She was promoted as a Sub Inspector on September 17, 1991. Similar are the facts with regard to the other two petitioners.

The Director General of Police, Haryana presumably in exercise of the powers u/s 12 of the Police Act, 1861, had issued instructions vide letter dated February 17, 1984 to the various Deputy Inspector Generals of Police in the State of Haryana. It was noticed that during the year 1981-82, the Government had sanctioned a number of posts constituting the lady Police force. This is a separate cadre in the Haryana State Police". Keeping in view the fact that a sufficient number of lady constables existed, it was decided that they should be selected for undergoing the lower school course "like male constables to get their further promotion in their separate cadre. They shall compete among themselves and selection for B-I list will be made limited to the number of seats allotted to each range...." Thereafter, another letter dated December 23, 1987 was issued providing that the provisions of Rule 13.7 of the Punjab Police Rules, Volume II, should be followed in the matter of selection of lady constables. It was also noticed that in Hissar Range, "the District Superintendent of Police had conducted B-I test jointly for male and lady constables. This is totally in contravention of the instructions issued vide this office Memo No. 1095-98/T-2 dated 17.2.84....." It was, therefore, stressed that "in future B- I tests for lady constables shall be conducted separately and strictly in accordance with the instructions dated 17.2.84". Certain other clarifications were also given vide letter dated January 4, 1989. However, the existence of a separate cadre for lady constables etc. was acknowledged.

On July 9, 1993, the Director General issued an order that the instructions issued vide memos dated February 17, 1984, December 23, 1987 and January 4, 1989, are hereby withdrawn. Consequent upon the withdrawal of these instructions, it was directed vide letter dated November 4,1993 that the male and female police personnel of "all ranks constitute one single joint care....Henceforth the lady constables, Lady Head Constables, Lady ASI''S etc. and the lady police persons are to be promoted/confirmed on their turn and on availability of vacancy". Vide letter dated April 26, 1994, it was directed that "the benefits which the elady police officials have derived by virtue of the lady police being treated as a separate cadre and which are not in consonance with the provisions of Police Rules are to be taken away and their seniority refixed....Further if on account of the aforesaid refutation of the seniority, any person is adversely affected, they will have to be given a reasonable opportunity before passing an order about the proposed refixation of seniority". Directions for further necessary action were, accordingly, given.

In pursuance to these directions, the petitioners were given notices to show cause as to why their seniority be not refixed amongst male police officials. It was pointed out that the male police personnel who were brought on List ''C on April 12, 1989 were still officiating as Head Constables while the petitioners had got accelerated promotions. Similar notices were sent to all the petitioners. Apprehending reversion, the petitioners approached this Court through the present petitions. They question the very validity of the circulars dated July 9, 1993 and April 26, 1994 by which the decision to have a separate cadre for lady police force was withdrawn and directions for revision of seniority etc. were given. It is alleged that the action is totally arbitrary and that the vested rights cannot be taken away after the lapse of so many years.

A written statement has been filed on behalf of the respondents by the Deputy Inspector General of Police, Hissar Range. It has been averred by way of a preliminary objection that the writ petition is directed against a show cause notice and is, thus, premature. It has been further averred that there is no separate cadre of lady police force''. In fact, it was illegally created. Consequently, the promotions etc. earned by the petitioner cannot be sustained. On merits, the facts have not been disputed. It has, however, been averred that the instructions constituting a separate cadre for ladies have been legally withdrawn and that the proposed action is just and fair.

We have heard Mrs. Lisa Gill, learned counsel for the petitioners. She has contended that the order of the Director General of Police creating a separate cadre for ladies was legal and valid. The order dated July 9, 1993 by which the earlier instructions were withdrawn, can only operate prospectively and not retrospectively. On this basis, it is submitted that the show cause notices issued to the petitioners are wholly illegal and deserve to be quashed. Ms. Ritu Bahri, appearing for the respondents have submitted that the creation of a separate cadre was itself illegal and no rights can be based thereon.

Admittedly, the posts for constitution of lady police force were sanctioned in the year 1981-82. Consequently, it was at that stage that the authorities had to consider and decide about the constitution of a cadre. At that time, a conscious decision was taken to constitute a separate cadre for ladies, it was circulated vide letter dated February 17, 1984. No provision of the Police Act or the rules has been pointed out to show that the action was not in conformity with law. In this behalf, it may be noticed that even when a decision to constitute the Armed Police Force was taken, the members were not integrated with the police personnel already in service. The Armed Police was constituted into separate batallions with separate seniority and avenues of promotion. It continues to function as such even today. Similarly, after the constitution of the ''lady police force'', a decision to constitute a separate cadre was taken. It was implemented. Promotion etc. were accordingly made. That having happened, it cannot be said now by the respondents themselves that their action was illegal or that it has to be annulled retrospectively.

There is another aspect. Every executive order which is to the prejudice of an employee can only be prospective. Even the order dated July 9, 1993 by which the instructions constituting a separate cadre for the ladies have been withdrawn, is apparently prospective. It does not state that the instructions have been withdrawn retrospectively. On a plain reading of the order, it is clear that the withdrawal was to be effective from the date of the issue of the order viz. July 9, 1993. That being so, the promotions etc. which had taken place during the interregnum could not be adversely affected.

It deserves mention that in pursuance to the decision of the respondents to create a separate cadre for ladies, the selections and promotions were regularly made. Not only that, even orders of confirmation were issued. That have happened, the various persons including the petitioners who were promoted from time to time got rights of seniority etc. Some of them were even confirmed. These rights cannot be annulled by the mere withdrawal of the instructions. Such a course of action would be totally arbitrary and unfair. In this behalf, it may be noticed that when the State amended the Punjab Government National Emergency (Concession) Rules, 1965 with retrospective effect, the decision was annulled by their Lordships of the Supreme Court in the case of Ex. Cap. K.C. Arora v. State of Haryana 1984(2) S.L.R. 97. It was held that acquired rights could not be taken away by the retrospective amendment of the rules. If a legislative measure for withdrawal of acquired rights cannot be sustained, the action of the respondents in bringing about a similar situation by a mere executive order would be totally illegal.

Accordingly, it is held that the executive order dated July 9, 1993 can operate only prospectively. It can have no retrospective effect. As a result, the promotions etc. ordered prior to the issue of this letter, cannot be questioned. Consequently, the show cause notices issued to the petitioners are legally untenable.

We, therefore, allow there writ petitions and quash the show cause notices issued to the petitioners. In the circumstances of these cases, we make no order as to costs.