Central Administrative Tribunal - Delhi
H C Ajit Singh vs Comm. Of Police on 18 November, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.2697/2012
Order Reserved on:02.11.2016
Pronounced on:18.11.2016.
Hon'ble Mr. Raj Vir Sharma, Member (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Head Constable (Exe.) Ajit Singh,
No.411/SB (now 982/PCR),
PIS No.28901358,
S/o Sh. Jaibir Singh,
R/o H.NO.WS-1E, Tegore Gali,
Babarpur, Shadara, Delhi-32.
-Applicant.
(By Advocate : Shri Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through Lt. Governor,
Govt. of NCT of Delhi,
Raj Niwas, Delhi.
2. Commissioner of Police,
Police Headquarters, IP Estae,
MSO Building, New Delhi.
3. Deputy Commissioner of Police,
(Establishment), PHQ, IP Estate,
MSO Building, New Delhi.
- Respondents
(By Advocate Shri N.K. Singh for Mrs. Avnish Ahlawat)
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(OA No.2697/2012)
ORDER
Mr. K.N. Shrivastava, Member (A):
This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985. The applicant has prayed for the following main reliefs:
"(a) Quash and set aside the impugned order mentioned in Para 1 of the OA. And
(b) Direct the respondents to promote the Applicant on out of turn basis to the rank of Assistant Sub-Inspector w.e.f. 14/09/2007 (the date when OTP has been granted to his team mate) with all consequential benefits including seniority, difference in pay, promotion etc., And"
2. The brief facts of this case are as under. The applicant was appointed as a Constable (Exe.) in the Delhi Police on 09.10.1990. He was given promotion as Head Constable (Exe.) on out of turn basis for displaying extraordinary gallantry. 2.1 A team of police officials from the Special Cell of Delhi Police comprising SI Rahul Kumar, SI Mehtab Singh, SI Dharmender Kumar and HC Ajit Singh (applicant) killed a dreaded gangster in an encounter on 30.12.2004. The team also apprehended two associates of the gangster in the said encounter. For this act of bravery, the DCP (Special Cell) recommended out of turn promotion (OTP) for all the members of the team.
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(OA No.2697/2012) 2.2 The Incentive Committee of Delhi Police met on 4th and 5th December, 2006 to consider the case of the team members for reward for the act of gallantry. The said Committee recommended OTP only for SI Dharmender Kumar and SI Rahul Kumar. For the applicant, the Committee recommended 'Asadharan Karya Purskar' (AKP) carrying a cash award of Rs.5,000/-.
2.3 The recommendation of the Incentive Committee was given due consideration by the Delhi Police Commissioner, who accepted the recommendations of the Committee for OTP only in respect of SI Rahul Kumar. For SI Dharmender Kumar, to whom the Incentive Committee had also recommended OTP, the Police Commissioner did not accept the Committee's recommendations and instead decided to grant him AKP only.
2.4 SI Dharmender Kumar challenged the decision of the Police Commissioner before this Tribunal in OA No.557/2011, which was allowed vide order dated 05.09.2011 with direction therein to the respondents to grant OTP to him as per the recommendations of the Incentive Committee. The said order of the Tribunal was implemented on by the respondents 14.10.2011 w.e.f. 14.09.2007. 2.5 The applicant submitted two representations dated 08.12.2011 (Annexure A-8) and 07.05.2012 for grant of OTP to him but they were rejected by the Competent Authority vide Annexure A-1 order dated 07.05.2012.
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(OA No.2697/2012) 2.6 Aggrieved by the rejection of his representations for OTP, the applicant has filed the instant OA.
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply. The applicant thereafter filed his rejoinder. With the completion of the pleadings, the case was taken up for hearing the arguments of the parties on 02.11.2016. Shri Sourabh Ahuja, learned counsel for the applicant and Shri N.K. Singh for Mrs. Avnish Ahlawat, learned counsel for the respondents argued the case.
4. Shri Sourabh Ahuja, learned counsel for the applicant urged the following points during the course of his arguments:
a) The applicant was also a member of the same team of the Special Cell of Delhi Police, which gunned down a dreaded gangster in an encounter. Two members of the said team, namely, SI Rahul Kumar and SI Dharmender Kumar have been granted OTP for the act of bravery but the applicant has been discriminated against as he has not been granted OTP but has only been granted AKP with cash reward. Such an action of the respondents is violative of the equality principles enshrined in Article 14 of the Constitution of India.
b) The applicant's case for OTP was not recommended by the Incentive Committee presumably on the ground that the applicant has already been granted one OTP in the past. The Hon'ble High 5 (OA No.2697/2012) Court of Delhi in the case of ASI Devender Kumar v. Govt. of NCT of Delhi & Ors., [Writ Petition (Civil) No.8841/2008] has ruled that there cannot be any restriction to the number of out of turn promotions to a particular police officer. It is further held that Rule 19 of the Delhi Police (Promotion & Confirmation) Rules, 1980 has statutory force and no circular/guidelines or office memorandum can supplant the substantive rule and that no policy can be made contrary to the statutory rules.
c) A Full Bench of this Hon'ble Tribunal in OA No.187/2007 with OA No.290/2007 - Nasib Singh v. Union of India & Others, vide order dated 10.09.2007 has held that any State action called in question on the ground of discrimination would be amenable to judicial review.
3.1 Concluding his arguments, Shri Ahuja submitted that all the members of the team that gunned down the dreaded gangster were entitled to the same incentive of OTP and that denial of OTP to the applicant is discriminatory in nature and against the law laid down. As such, the applicant's prayer for the grant of OTP may be allowed.
4. Per contra, Shri N.K. Singh, learned counsel for the respondents submitted that this OA is hopelessly barred by limitation of time. It was submitted that the AKP was awarded to the applicant way back on 14.09.2007, whereas the applicant has chosen to file the present OA after an inexplicable delay of over 5 6 (OA No.2697/2012) years on 13.07.2012, which is not permitted in terms of the law laid down by the Hon'ble Apex Court in the case of D.C.S. Negi v. Union of Inida and Others, [Civil Appeal No.7956 of 2011, decided on 07.03.2011]. The learned counsel also placed reliance, in support of this argument, on the judgments of the Hon'ble Supreme Court in the case of Union of India v. M.K. Sarkar, [(2010) 2 SCC 59] and in the case of Shiba Shankar Mohapatra and Ors. v. State of Orissa and Ors., [2010) 12 SCC 471 on this issue. 4.1 Shri Singh further stated that OTP, being by way of special benefit, cannot be claimed as a matter of right and nobody can stake a claim to be promoted from a date when somebody has done good work justifying claim to be considered for out of turn promotion, as held by the Hon'ble High Court of Delhi in the case of Commissioner of Police & Ors. v. SI Satbir Singh, [Writ Petition (Civil) No.10733/2009]. Continuing his arguments, Shri Singh stated that the Incentive Committee first met on 14.09.2005 but did not recommend grant of OTP/AKP to any of the team members. However, after the receipt of the representation of the team members, the Incentive Committee met again on 02.08.2006 and decided to recommend OTP only to SI Rahul Kumar and SI Dharmender Kumar and AKP with a cash prize of Rs.5,000/- to the applicant.
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(OA No.2697/2012) 4.2 Concluding his arguments, the learned counsel for the respondents submitted that the recommendation of the Incentive Committee was wholly based on the assessment of role played by different members of the team in the encounter. The said Committee in its assessment found that the applicant deserves just AKP and not OTP. Hence, the claim of the applicant for OTP cannot be granted.
5. We have considered the arguments of the learned counsel for the parties and have perused the pleadings and documents annexed thereto. Admittedly, the Incentive Committee had recommended OTP for only two members of the team, namely, SI Rahul Kumar and SI Dharmender Kumar and only AKP for the applicant. The Police Commissioner in his wisdom felt that SI Dharmender Kumar did not deserve OTP albeit he too was recommended for the same by the Incentive Committee and decided to award just AKP to SI Dharmender Kumar. The Tribunal had found arbitrariness in this decision of the Police Commissioner and felt that no credible reason has been assigned by the Police Commissioner in rejecting the recommendations of the Incentive Committee in respect of SI, Dharmender Kumar. Accordingly, the Tribunal allowed the OA filed by SI Dharmender Kumar. With this judicial intervention, OTP was granted to SI Dharmender Kumar. The case of the applicant is completely different. The Incentive Committee never recommended OTP for the applicant and had only 8 (OA No.2697/2012) recommended AKP with cash award of Rs.5,000/- to the applicant, which has been approved by the Police Commissioner. Thus, the applicant cannot draw any strength from the judgment of this Hon'ble Tribunal in the case of Sub Inspector (Exe.), Dharmender Kumar v. GNCT of Delhi & Ors., [OA No.557/2011, decided on 05.09.2011].
5.1 The ratio of law laid down by the Hon'ble High Court of Delhi in the case of ASI Devender Kumar (supra) is of no relevance to the instant case. In ASI Devender Kumar (supra), the issue involved was as to whether there could be restrictions on the number of OTPs which could be given to a police officer. The Hon'ble High Court of Delhi held that there cannot be any such restriction. The Hon'ble High Court observed that the OTPs are granted to the deserving police officials of Delhi Police under Rule 19 of the Delhi Police (Promotion & Confirmation) Rules, 1980, which has statutory force and this Rule does not impose any restriction on the number of OTPs to be given to a police officer. The Court also observed that no circular/guideline or office memorandum can diminish the statutory force of the rules. In the instant case, OTP has not been denied to the applicant on the ground that he has already been given OTP once in the past. The Incentive Committee itself recommended only AKP for the applicant, which has not been altered by the Approving Authority, i.e., Police Commissioner. 9
(OA No.2697/2012) 5.2 The learned counsel for the applicant had attempted to draw support from this Tribunal's judgment in the case of Neeraj Kumar v. GNCTD & Ors., [OA No.3398/2010 with OA No.3409/2010, decided on 21.04.2011]. The issue involved in that case was that promotional quota of 5% for OTP was coming in the way of the promotion of the applicant therein. In the instant case that is not the issue. Here, the Incentive Committee has recommended only AKP for the applicant and not OTP. In Nasib Singh's case (supra) the issue involved was the ground of discrimination. The Full Bench of this Tribunal in Nasib Singh's case (supra) observed that the scope of judicial review is limited only to find out discrimination, which may be writ large on the face of it, and that the ground of discrimination could be amenable to judicial review. In the instant case, the Incentive Committee, in its assessment, after taking into consideration the role played by the Special Cell team members individually in the encounter of the gangster, came to the conclusion that only SI Rahul Kumar and SI Dharmender Kumar deserved OTP and that the applicant deserves only AKP. Such an assessment cannot called as discrimination. After all, the Incentive Committee is a properly constituted technical body of the department, which assesses the individual role/performance of police officer engaged in an incident and thereafter makes suitable recommendations. As such, we are of the view that the assessment of such a specialist body cannot be subjected to judicial review. 10
(OA No.2697/2012) 5.3 The learned counsel for the respondents had vehemently argued that the OA is hopelessly barred by limitation of time in view of the fact that the AKP was awarded to the applicant way back on 15.12.2006, whereas the instant OA has been filed after a lapse of over five years on 10.07.2012. From the perusal of the records, it is quite evident that the applicant has remained contended with the AKP till he came to know of the judicial verdict of this Tribunal in the case of SI Dharmender Kumar (supra). We do not find any credible explanation in the pleadings of the applicant for this delay in filing the OA.
6. In the conspectus of the discussions held in the foregoing paras, we are of the view that the OA is devoid of merit and that it also suffers from the vice of limitation. On both these grounds, the OA is dismissed.
7. No order as to costs.
(K.N. Shrivastava) (Raj Vir Sharma)
Member (A) Member (J)
'San.'