Central Administrative Tribunal - Delhi
Satyender Kumar vs Comm. Of Police on 9 December, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 3810/2014
Reserved on 07.12.2016
Pronounced on 09.12.2016
Hon'ble Mr. Shekhar Agarwal, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
HC (Exe.) Satyendra Kumar,
No. 391/SB (Now 555/SB),
PIS No.28862409
S/o Late Sh. Balbir Singh,
r/o C-246, Gali No.9, Ganga Vihar,
Gokulpuri, Delhi-110094
Presently posted at Special Cell
Lodhi Colony, New Delhi. ... Applicant
437, Pocket 1, DDA Flats,
(Through Shri Sourabh Ahuja )
VERSUS
1. GNCT of Delhi,
Through Lt. Governor,
Govt. of NCT of Delhi,
Raj Niwas, Delhi.
2. Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
3. Deputy Commissioner of Police,
HQ's (Establishment), PHQ, IP Estate,
MSO Building, New Delhi.
4. Principal Secretary (Home)
GNCT of Delhi,
Home Police-1/Estt. Department,
5th Level, 'C' Wing, Delhi Secretariat,
IP Estate, New Delhi. ... Respondents
(Through Mr. N.K.Singh for Mrs. Avnish Ahlawat )
ORDER
Mr. Shekhar Agarwal, Member (A):
The applicant was appointed as Constable (Executive) in Delhi Police on 01.08.1986 and was promoted to the rank of 2 OA 3810/2014 Head Constable on 13.10.2001 out of turn. According to him, he has an unblemished service record and has earned 37 Commendation Rolls, 1 Commendation Certificate, 69 Commendation Cards and total cash reward of Rs.47265/-. On 21.05.2003, he alongwith SI Mehtab Singh, ASI Ashok Kumar and Constable (Driver) Rajender Singh were involved in a successful operation in which a module of Laskar-e-Tayyeba (LeT) was busted and in which one militant named Arif was eliminated. In January, 2004, the Deputy Commissioner of Police (Special Cell) recommended his case for out of turn promotion alongwith the others involved in the episode. The case was then considered by the Incentive Committee. On 12.04.2004, the Incentive Committee recommended Constable (Driver) Rajender Singh for grant of OTP whereas the applicant alongwith others was recommended for grant of commendation roll with cash reward of Rs.3000/- each. The grievance of the applicant is that he was involved in the same episode as Constable (Driver) Rajinder Singh and hence also deserves to be promoted out of turn. According to him, he made several representations orally as well as in writing and prayed for equality of treatment. However, when no response was forthcoming from the respondents, the applicant approached this Tribunal by filing OA no. 1662/2012. This OA was withdrawn by the applicant with liberty to avail departmental remedy in first instance vide order dated 16.05.2012. Thereafter, on 23.07.2012, the Commissioner of Police rejected the representation of the applicant on grounds of delay. The applicant preferred an appeal against the aforesaid order to Hon'ble Lt. Government of Delhi on 01.08.2012. This 3 OA 3810/2014 was rejected on 19.08.2014. Hence, he has now approached this Tribunal by filing this OA seeking the following reliefs:-
"(a) Quash and set aside the impugned orders dated 12/04/2004, 23/07/2012 and 19/08/2014 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. 12/04/2004 (the date when his team mate was granted out of turn promotion) with all consequential benefits including seniority, difference in pay, promotion etc., And
(c). Call for the records of the case pertaining to incentive committee which was held on January, 2004. And
(d). Award cost in favour of the Applicant and against the respondents. And/or
(e). Pass any further order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. His contention is that he has been discriminated against inasmuch as his bravery act was the same as that of Constable (Driver.) Rajender Singh. Yet Constable Rajender Singh has been granted out of turn promotion whereas the applicant has been granted commendation roll only. He has alleged that the impugned orders were also contrary to the principles of natural justice. In this regard, he has relied on the judgment of Hon'ble High Court of Delhi in the case of ASI Devender Kumar Vs. Govt. of NCT of Delhi & Ors (WP (C) No. 8841/2008), which according to him, has also been implemented. He has further submitted that minutes of the Incentive Committee would reveal that the material facts and record placed before the Incentive Committee qua the applicant were identical to the material placed qua the Constable (Driver) Rajender Singh. The minutes of the Incentive Committee 4 OA 3810/2014 do not reveal as to why the applicant has not been granted out of turn promotion like Constable (Driver) Rajender Singh. Thus the respondents have violated the Doctrine of Legitimate Expectation.
3. In their reply, the respondents have submitted that applicant's representation was rejected by the Commissioner of Police as it was made after a passage of eight years from the date on which commendation roll was granted to him. Hon'ble Lt. Governor of Delhi also rejected his appeal. Thus, the applicant was sleeping over his rights. Merely the fact that his representation was decided on 19.08.2014 does not give him a fresh cause of action. The respondents have relied on the judgment of Hon'ble Supreme Court in the case of C.Jacob Vs. Director of Geology and Mining (2008) 10 SCC 115) on the issue of delay. They have also relied on the judgment of Hon'ble Supreme Court in the case of Union of India Vs. M.K.Sarkar (2010)2 SCC 59) to say that decision on a belated representation with regard to a stale or a dead issue cannot be considered as furnishing a fresh cause of action for reviving that dead issue. They have also relied on the judgment of this Tribunal in OA No. 3066/2013, titled HC Ashok Kumar Vs. GNCT & Ors, wherein this Tribunal after placing reliance on the judgment in Writ Petition (C) No. 10733/2009, titled Commissioner of Police Vs. Satbir Singh dismissed the aforesaid OA with the following observations:-
"5. Firstly, the respondent is not claiming any right to be promoted under the notified Recruitment Rules. Secondly, out of turn promotion being by way of a special benefit cannot be claimed as a matter of 5 OA 3810/2014 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 special incentive can never rank at par with statutory rights."
4. They have further submitted that the case of the applicant was considered by the Incentive Committee in its meeting held on 21.01.2004 and 27.01.2004 and decision was taken by that Committee after assessing the role of each officer and their performance in the operation. The recommendation of the Committee was approved by the Commissioner of Police on 31.01.2004.
5. We have heard both sides and have perused the material on record.
6. We have first considered the grounds of delay taken by the respondents. The applicant in this regard has relied on the judgment of Hon'ble Supreme Court in the case of Sualal Yadav Vs. The State of Rajasthan and Others (AIR 1977 SC 2050), in para 2 of which the following has been held:-
"2. A preliminary objection was taken by the State in the High Court that the application merited dismissal because of undue laches and delay on the part of the appellant. The High Court found that the review application was made to the Governor after a lapse of about two years which was unreasonable delay according to the High Court. That is the main reason why the High Court accepted the preliminary objection and dismissed the writ application. We are unable to hold that the High Court's approach in this matter was correct. Since the Governor had not dismissed the review application on the ground of delay and having entertained the same held it to be a case not fit for review, we take the view that the Governor dismissed the review application on merits. That being the position, it was not open to the High Court to resurrect the ground of delay in the review application at a remote stage and make it a ground for dismissing the writ application. We 6 OA 3810/2014 therefore allow the appeal, set aside the order of the High Court and remit the writ application for disposal in accordance with law. It is hoped the High Court will able to dispose of the same expeditiously. There will be no order as to costs."
In this case, it is not disputed that the applicant made representation to the Commissioner of Police eight years after the commendation roll was awarded to him. The representation of the applicant was rejected by the Commissioner on grounds of delay as is evident from the order dated 23.07.2012 available at page 18 of the paper book. Thereafter, the appeal made to the Hon'ble Lt. Governor was rejected on 19.08.2014. The order of the Lt. Governor is available at page 19 and reads as follows:-
"Sub: Regarding representation of HC Satyendra Kumar No. 391/SBPIS No. 28862409 for grant of out of turn promotion.
...
Reference your office memo. Nos.1780/Z/SB dated 30.08.2011 and 1843/SB dated 3.10.2012, on the above subject, I am to inform that Hon'ble Lt. Governor, Delhi has considered and rejected both the representations, one dated 01.06.2011 which refers to the incident dated 05.03.2005 and the other representation dated 01.08.2002 which refers to the incident dated 22.05.2003 of HC(Exe.) Satyendra Kumar, filed by him before Hon'ble Lt. Governor, Delhi regarding grant of out of turn promotion.
The HC may be informed accordingly."
The order does not reveal that the rejection is on grounds of delay. Hence, it is to be presumed that the rejection was on merits. In this view of the matter, the applicant's case will be covered by the judgment of Hon'ble Supreme Court in Sualal Yadav's case (supra) and, therefore, the OA cannot be rejected as being time barred.
7 OA 3810/2014
7. We also summoned the official file of the respondents in which the case of the applicant was considered by them. The same was taken on record and was perused by us. On perusal of the minutes of the Incentive Committee, we find that the following has been recorded qua the applicant and Constable Rajender Singh.
Sl.No. Rank, Name, GIST Recommended Recommendation
Belt No. & for of the
place of Committee
posting
X X X X X
30. HC For his extraordinary OTP CP's
Satyendra good work and Commendation
Kumar exemplary gallant act Roll with cash
No.391/SB that led to a successful reward of
Spl.Cell/SB operation in which an Rs.3000/-
LeT militant namely
Arif @ Abdul Aziz r/o
Bahawalnagar,
Pakistan was shot
dead in the daring
encounter in Deenpur,
Najafgarh on 22.5.03.
This operation led to
the neutralization of
terrorist network of
the LeT in Delhi and
averted a prospective
terrorist attack. During
the encounter, 28
rounds were fired by
the militant and 48 by
the Police. One AK-47
assault Rifle, 3 spare
magazines, 6 hand
grenades and 92 live
cartridges were
recovered from the
militant's hideout.
31. Ct.(Dvr.)
Rajender
Singh -do- OTP OTP
No.398/SB
Spl.Cell/SB
From this it would appear that the material considered by the Incentive Committee was same for both applicant as well as Constable (Driver) Rajender Singh. However, learned counsel drew our attention two citations for out of turn promotion prepared by Deputy Commissioner of Police (Special Cell) which 8 OA 3810/2014 are available at pages 22-24 of the paper book. Learned counsel for the respondents submitted that the aforesaid citation were also considered by the Incentive Committee as they bring out the role of each person involved in the episode. We find as far as the applicant and Constable (Drv.) Rajender Singh are concerned, the following is stated in the citation:
"HC Satyendra- He was member of the police team that was deployed in Western UP area and managed to locate & identify Mehboob. He along with other team members also developed sources and despite unfriendly conditions in and around Vill Loi, kept all possible watch on him. They also managed to extract the vital information that Mehboob had returned the consignment of arms & explosives to Arif. They were also instrumental in getting the information about Mehboob's movement in Delhi which led to his arrest along with arms & ammunition.
When the police party tired to apprehend the Pak militant, he opened fire upon the police party. During the encounter, HC Satyendra also positioned himself on the rooftop of the adjacent house, which was directly in the firing line of the militant. HC Satyendra very closed faced the hail of bullets being showered from the trained militant's AK-47 rifle. Undeterred and unfazed, he put his life at risk and bravely confronted the militant. He fired 3 rounds from his 9mm pistol and also played a vital, role in neutralizing the militant.
Constable (Dvr) Rajender- Having realized Ct. (Dvr.) Rajender's driving skills and his aptitude for the field work, he was continually deputed with the team that was deployed in Western UP area. Besides successful tailing of Mehboob, he also proved helpful in developing sources and keeping watch on him despite unfriendly conditions in and around Vill Loi. He was also instrumental in locating & identifying Mehboob. He was also instrumental in getting the information about Mehboob's movement in Delhi, which finally led to his arrest along with arms & ammunition. When Sh.Rajbir Singh, ACP knocked at the door of militant's house in Deenpur and challenged him to surrender, he opened fire upon the police party. Ct.(Dvr.) Rajender, who was standing beside Sh.Rajbir Singh, ACP had a providential escape when bullets fired by the militant narrowly missed him. Since he was involved in this operation from the beginning, he did not care for his life and unarmed, he remained in the forefront."9 OA 3810/2014
On perusal of the same, it is evident that even though both Constable (Dvr.) Rajender Singh and Applicant were involved in the same episode, they played different roles at the time of operation. While the applicant was on rooftop of an adjacent house, Constable Rajender Singh was at the door of Militant's house and faced imminent danger of being shot at. Thus, they played different roles in the encounter and cannot be treated in the same manner. The Incentive Committee in its wisdom decided to recommend OTP for Constable (Dvr.) Rajender Singh and commendation roll for the applicant. This Tribunal does not wish to substitute its judgment over the judgment of the Incentive Committee. That being an Expert Body on this issue was competent to take decision according to its wisdom. What is note worthy is that the role of HC Satyendra and Constable (Dvr.) Rajender Singh were different in the episode. Hence, the applicant's claim that he deserves to be treated in the same manner as Constable (Dvr.) Rajender Singh is not sustainable. Thus the charge of discrimination made by the applicant also cannot be sustained. If that be the position the applicant is not justified in asking for out of turn promotion as that cannot be demanded as a matter of right. In this regard, we place reliance on the judgment of a co-ordinate bench of this Tribunal in HC Ashok Kumar's case (supra).
10. In view of the above, we are of the opinion that there is no merit in this OA and the same is dismissed. No costs.
( Raj Vir Sharma ) (Shekhar Agarwal) Member (J) Member (A) 'sk'