- (1.) In this bunch of petitions (as per the list Annexure "A") a common question of law and facts has been raised namely as to 'whether the petitioners who are members of district cadre or range cadre could be transferred outside their respective cadres'. Before adverting to the facts we would state the legal position so as to put the whole controversy in proper perspective. The question of inter cadre transfer is fairly well settled. In this regard, judgment of the Hon'ble Supreme Court in the case of Jawaharlal Nehru University v. Dr. K.S. Jawatkar and others, 1989 Supp1 SCC 679, could be relied upon. In that case, the Centre of Post Graduate Studies was set up at Imphal by the Jawahar Lal Nehru University (for brevity to be referred as 'JNU') and teaching/administrative staff was appointed by JNU to man the Centre. Subsequently the Centre was transferred to Manipur University as per the decision of the Syndicate of JNU and as such the Centre ceased to exist. It became a part of Manipur University according to JNU. Controversial part of the decision of the Syndicate of JNU was that members of the faculty employed by JNU Centre of Post Graduate, Imphal immediately before its merger into the Manipur University were to become members of the staff of Manipur University. It was in these facts and circumstances that the Hon'ble Supreme Court held that the teaching staff working at JNU Centre of Posy Graduate, Imphal, could not be transferred to Manipur University without their consent notwithstanding any statutory provision to that effect. The view of the Hon'ble Supreme Court is discernible from the para 7 of the judgment and the same reads as under : ".......The Centre of Post Graduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that this employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent ........." .
(2.) Similar view has been expressed by their Lordships in the case of G. Varandani v. Kurukshetra University and another, 2003 10 SCC 14 It clearly follows that the transfer of an employee from one cadre to another could not be made without his consent albeit the existence of a statutory provision to that effect. The controversy has already erupted before this Court and two Division Benches after referring to the Punjab Police Rules, 1934 (for brevity, 'the Rules') have also concluded in the manner aforesaid. In the case of Vinod Kumari and others v. State of Haryana and others, (CWP No. 66 of 2006, decided on 4.4.2006), a Division Bench of this Court while disposing of bunch of petitions, after referring to Rules 13.7 to 13.9 of the Rules, has held as under :- "...........It would be relevant to mention that Rules 13.7 to 13.9 of the Police Rules require the maintenance of lists for promotion to the posts of Head Constables and Assistant Sub-Inspectors at the level of the Superintendent of Police. Reading the aforesaid rules with the assertions of the petitioners, that a Superintendent of Police is incharge at the district level, which position is not controverted by the learned counsel for the respondents, we are satisfied that at least for the posts of Constables and Head Constables, it can be clearly concluded that the cadre is at the police district level". In respect of those police officers who are in the range cadre, reference has been made to Rules 13.10 and 12.1(4) of the Rules and the Division Bench observed as under : "Likewise, a perusal of Rule 13.10 of the Police Rules reveal, that the list for promotion to the post of Sub Inspector is maintained by the Deputy Inspector-General of Police. It is also asserted by the learned counsel for the petitioners, that a Deputy Inspector-General of Police is incharge at the range level. This factual position is also not disputed by the learned counsel for the respondents. It can, therefore, be clearly concluded while reading with the averments made in paragraph 6 (on merits) of the written statement, extracted above, that the cadre of the posts of Assistant Sub Inspectors and Sub Inspector is maintained at the range level. The aforesaid position stands affirmed independently by Rule 12.1(4) of the Police Rules, wherein, it is asserted that Constables and Head Constables in each district shall be borne on the district rolls and shall receive district constabulary numbers, and further, that Assistant Sub-Inspectors and Sub- Inspectors shall be borne on the range rolls and shall receive constabulary numbers ........." On principle the same proposition has been followed by another Division Bench in the case of ASI Megh Pal v. State of Haryana and others, (CWP No. 18904 of 2005, decided on 7.2.2006), and a number of petitions were disposed of.
(3.) We have prefaced the above judgment to highlight that the respondent-State despite the view taken by two Division Benches of this Court which on precedent as well as principle as unexceptionable and yet have forced the petitioners through the bunch of these petitions to approach this Court. We would have liked the respondent-State to follow the dictum of the judgments delivered by the Division Benches of this Court in the afore-mentioned two judgments which are based on rules because the controversy in the instant petitions is also based on those Rules.;