Central Administrative Tribunal - Delhi
Abdul Nazeer Kunju vs Union Of India on 24 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2047/2006
With
OA 2612/2005
OA 2198/2008
OA 2905/2009
OA 516/2010
OA 548/2010
New Delhi this the 24th day of March, 2011
Honble Mr. Justice V.K.Bali, Chairman
Honble Mr. L.K.Joshi, Vice Chairman (A)
Honble Mr. Shailendra Pandey, Member (A)
Honble Dr. Veena Chhotray, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
OA 2047/2006
Abdul Nazeer Kunju,
PIS No. 28862653
R/o Padeettadath House,
PO: Madathil Karazhma,
Vill: Oachira,
Taluk: Karunagappally,
Distt: Kollam, Kerala. Applicant
(By Advocate Shri Anil Singal )
VERSUS
1. Union of India,
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Lt. Governor of Delhi,
Raj Niwas, Delhi.
3. Commissioner of Police,
Police Head Quarters, I.P. Estate,
New Delhi.
4. Dy. Commissioner of Police
(Headquarters), PHQ, I. P. Estate,
New Delhi.
5. Raju Mohan
(PIS No. 28862750)
Constable in Delhi Police.
6. Basheer Kutty
(PIS No. 28870379)
Constable in Delhi Police
7. Roop Lal (Sr.No.1),
(PIS No. 28760250)
Head Constable in Delhi Police.
8. Narotam Singh (Sr. No. 501)
(PIS No. 28861861),
Head Constable in Delhi Police
9. Amar Nath Meena (Sr.No.1111),
(PIS No. 28930877),
Head Constable in Delhi Police Respondents
(By Advocate Ms. Harvinder Oberoi )
(Respondents No. 5 to 9 to be served through respondent No. 3)
OA 2612/2005
Insp. Exe. Bramh Jeet Singh,
No. D-838, Special Cell,
Southern Range, Bharat Nagar, N.F.C,
New Delhi. Applicant
(By Advocate Shri Arun Bhardwaj )
VERSUS
1. Union of India,
Through Commissioner of Police,
Police Headquarters, I. P. Estate, New Delhi.
2. Special Commissioner of Police,
Administration, Police Headquarters,
I.P. Estate, New Delhi.
3. Jt. Commissioner of Police,
(Estt.) PHQ, New Delhi.
4. Insp (Exe.) Palvinder Singh
Addl. S.H.O., Gokul Puri (North East Distt.)
5. Inspector (Exe.) Pankaj Sood
Spl. Cell/NR, New Delhi. Respondents
(By Advocate Ms. Harvinder Oberoi )
( 4 to 5 to be served through Commissioner of Police,
PHQ, ITO, I.P. Estate, New Delhi.
OA 2198/2008
ASI Jagvinder Singh
PIS No. 28740254
S/o Sh (Late) Om Parkash,
R/o 349/5, Village Mangal,
Pur Khurd, Delhi-83 Applicant
(By Advocate Shri Anil Singal )
VERSUS
1. GNCT of Delhi through
Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Joint Commissioner of Police
(Establishment) PHQ, IP Estate,
New Delhi.
3. DCP Headquarters (Estt),
PHQ, IP Estate, New Delhi.
4. SI Chander Bhan (Ad hoc)
PIS No. 286900273
5. SI Om Prakash (Ad hoc)
PIS No. 28740497 Respondents
(By Advocate Ms. Harvinder Oberoi )
( Respondent No. 4 & 5 to be served through respondent No. 3)
OA 2905/2009
Raju Punia,
Constable (Ex.) in Delhi Police,
PIS No. 28900755
R/o House No. D-1/1,
Model Town-III, Delhi. Applicant
(By Advocate Shri Anil Singal )
VERSUS
1. Lt. Governor of Delhi,
Raj Niwas, Delhi.
2. Govt. of NCT of Delhi
Through its Chief Secretary,
Delhi Secretariat, IP Estate,
New Delhi.
3. Commissioner of Police,
Police Head Quarters,
IP Estate, New Delhi.
4. Dy. Commissioner of Police,
(Headquarters), PHQ,
IP Estate, New Delhi. Respondents
(By Advocate Shri N.K.Singh for Mrs. Avnish Ahlawat )
OA 516/2010
Vinod Kumar,
HC of Delhi Police,
PIS No. 28822562,
R/o B-25, PS Vivek Vihar, Delhi. Applicant
(By Advocate Shri Anil Singal )
VERSUS
1. Govt. of NCT of Delhi,
Through Commissioner of Police,
Police Head Quarters,
IP Estate, New Delhi.
2. Addl. C.P (Traffic),
Police Head Quarters,
IP Estate, New Delhi.
3. DCP (HQ) Traffic,
PHQ, IP Estate, New Delhi. Respondents
(By Advocate Ms. Sumedha Sharma )
OA 548/2010
Vinod Kumar
HC of Delhi Police,
PIS No. 28822562,
R/o B-25, PS Vivek Vihar, Delhi. Applicant
(By Advocate Shri Anil Singal )
VERSUS
1. Lt. Governor of Delhi,
Raj Niwas, Delhi.
2. Govt. of NCT of Delhi,
Through its Chief Secretary,
Delhi Secretariat, IP Estate,
New Delhi.
3. Commissioner of Police,
Police Headquarters, IP Estate,
New Delhi.
4. Dy. Commissioner of Police,
(Headquarters), PHQ,
IP Estate, New Delhi. Respondents
(By Advocate Ms. Sumedha Sharma )
O R D E R
Mr. L.K.Joshi, Vice Chairman (A) :
A question has arisen regarding the correct interpretation of Rule 19 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 as regards the year from which the seniority of the subordinate officials of Delhi Police would be counted in the event of their being promoted on out of turn basis. Precisely the same issue came up before a Full Bench comprising the Honourable Chairman, Honourable Vice Chairman and Honourable Member (Judicial). The learned Full Bench decided the issue thus in its order dated 11.05.2006:
"30. In the light of discussion made hereinabove, we answer the reference as under: The seniority of persons promoted under Sub-Rule (ii) of Rule 19 of Delhi Police (Promotion and Confirmation) Rules, 1980 is to be placed at the bottom of the promotion list drawn up in that year when they are considered for regularisation under Rules 12-17 of the said Rules."
A learned Division Bench of this Tribunal has referred the matter to this Larger Bench by adverting to the judgement of the Delhi High Court in Government of NCT of Delhi and others V. Rajbir Singh, 104 (2003) DLT 461 (DB), in which, while interpreting Rule 19 (ii) ibid it was held that:
"A bare perusal of the aforementioned Rule would clearly go to show that for the purpose of seniority of the respondent herein, even if at one point of time he was promoted on out of turn basis, he was to be placed at the bottom of the promotion list drawn up for that year."
The learned DB also noticed that in Vinod Kumar V. Lt. Governor of Delhi and others, OA number 548/2010 also a view had been taken that the Rules 12-17 ibid would not apply in case of promotion under Rule 19 (ii) ibid. Advertence has also been made to the judgement in OA number 625/2007 in SI Satbir Singh V. Government of NCT of Delhi and others, decided on 19.03.2009, in which also an identical view was taken. When the issue came up for hearing before this Bench on 24.12.2010 it was, inter alia, noted that:
"3. Shri Anil Singal, learned counsel for the applicants states that the law laid down in the Full Bench needs to be re-visited as the same came to be laid by interpreting rule, which was not correctly reproduced in the judgement. There is no word 'not' preceding the words in the rank, while the Full Bench while reproducing the rule by mentioning the word not interpreted the law. The wrong rule came to be reproduced as the same has been wrongly produced in the book itself. It is in the above overview of facts that we are considering the issue posed before us.
2. Shri Anil Singhal, learned counsel representing the Applicants, states that there are six methods of promotion from Constable to Head Constable. First, under Rule 12 (i) (a) ibid, through competition when Promotion List 'A' is prepared. Constables up to the age of 40 years are eligible to take part in the tests and only 10 chances are allowed. Only confirmed Constables with minimum five years service shall be eligible. The selected Constables are sent to lower school course, subject to their medical fitness. The names of the selected constables are brought on the List 'A' in order of their seniority. Second, under Rule 12 (i) (b) ibid constables with minimum two years of service are eligible to undergo Drill Instructors Course and on satisfactory completion of the course with first class certificate of proficiency, their names are brought on the Promotion List 'A'. The third category, under Rule 14 ibid comprises constables, who are above 40 years of age and are considered suitable for promotion on the basis of their record and who have not been able to pass List A test. Fourth, ad hoc promotion under Rule 19 (i) of the Delhi Police (Promotion and Confirmation) Rules, 1980, in special circumstances, when there are no names on the promotion list and vacancies exist. Fifth category of promotees comprises those who are promoted out of turn under Rule 19 (ii) ibid. The sixth and the last mode of promotion is under Rule 19 (iii), in which the Commissioner of Police may promote an official of the subordinate rank for the purpose of posting to the Police Training School and the Recruits Training Centre on emergent basis. The learned counsel contends that promotions on the basis of the first three modes and the fifth mode are regular promotions, whereas promotions under the Rules 19 (i) and 19 (iii) are subject to reversion, once the purpose of promotion does not subsist. In case of Abdul Nazeer Kunju, Constable in Delhi Police, the Applicant in OA number 2047/2006, there were List A test in 1992, 1999 and 2005, but there was no test in 1995 and hence no Promotion List A in that year was prepared. Abdul Nazeer Kunju was promoted on out of turn basis in the year 1995 for showing exceptional gallantry. He was, however, placed at the bottom of the Promotion List 1999 for purposes of seniority. The learned counsel would contend that the Applicant has to be placed below the Promotion List of 1995. The learned counsel submitted that the Promotion List A had to be prepared every year, keeping in view the vacancies in the rank of Head Constable in the following year. The argument was that even though the Promotion List might have been prepared in the year 1999, it had to be prepared year wise and the Applicant had to be placed below the list of the year 1995.
3. Section 19 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 is extracted below:
"(ii) To encourage outstanding sportsmen, marksmen, officers who have shown exceptional gallantry and devotion to duty, the Commissioner of Police may, with prior approval of Administrator, promote such officers to the next higher rank provided vacancies exist. Such promotion shall not exceed 5 per cent of the vacancies likely to fall vacant in the given year in the rank. Such promotions shall be treated as ad-hoc and will be regularised when the persons so promoted have successfully completed the training course prescribed (Lower School Course), if any. For purposes of seniority such promotees shall be placed at the bottom of the promotion list drawn up for that year. (emphasis added) The learned counsel would contend that the aforesaid Section 19 (ii) ibid is independent of any other provision in the Rules and stands on its own. The condition of minimum of five years service for promotion prescribed in case of a Constable in Rule 12 (i) (a) ibid would not apply in case of promotion under the said Rule. The evaluation system prescribed in Rule 12, e g, the promotion based on the service record, seniority, Annual Confidential Report and acquaintance in professional test would not apply in case of such promotees. Once an official is promoted out of turn, the only condition for his regularisation would be passing of the prescribed training course, if any. At this stage, Shri Arun Bhardwaj, learned counsel for Inspector Brahmjeet Singh, the applicant in OA number 2612/2005, would contend that the person promoted out of turn would be considered to have been regularised immediately on promotion, if no training course is prescribed in that case, such as in the case of promotion from the grade of Sub Inspector to Inspector as no training course is provided for Inspector.
4. At this stage, it may be mentioned that List D under Rule 15 ibid is of Head Constables, with minimum five years service in the rank, suitable for promotion to Assistant Sub-Inspector. List E is of Assistant Sub-Inspectors, with minimum six years of service, suitable for promotion as Sub-Inspector. List F is of confirmed Sub-Inspector, with minimum six years service, suitable for promotion as Inspector.
5. The Respondent, au contraire, would contend that the Rule 19 (ii) had to be read with the Rules 12 to 17 ibid and all the conditions for promotion laid down therein would apply in case of out of turn promotion. She would advance the argument that such promotees would remain ad hoc promotees till they qualify as per the qualifications prescribed in the other rules. For example, she would contend, a Constable promoted out of turn to the grade of Head Constable, would have to abide by the conditions prescribed in Rule 12 ( i) (a) of the Delhi Police (Promotion and Confirmation) Rules, 1980, including the prescribed years of five years of service in the rank. Ms. Harvinder Oberoi, the learned counsel for the Respondents, contends that out of turn promotion is given only to build up the morale of the category of persons mentioned in Rule 19 (ii), by giving them ad hoc promotion, but such out of turn promotees cannot be given seniority over the persons of their batches, some of whom may be senior to him in these batches, de hors the rules prescribing the criteria of seniority, prescribed years of service et cetera under the rules. She would contend that Rule 7 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 would also apply with full force in case of those promoted on out of turn basis. The said Rule has been extracted below:
7 (ii) The conduct and efficiency of men on promotion list shall be, at all times, watched with special care. Any officer whose name exists on the promotion list, if found guilty of misconduct of nature reflecting upon his character or fitness for responsibility or who shows either by specific acts or by his record as a whole that he is unfit for promotion to higher rank shall be reported to the Deputy Commissioner of Police, head Quarters (sic) (1), Delhi in respect of persons on lists A to E and to Additional Commissioner of Police (Administration) Delhi in respect of officers on list F. However, final decision regarding removal of name(s) from a promotion list shall be taken by the Appointing Authority only show cause notice to the individual. The learned counsel has relied on several judicial precedents in support of her contentions, which include Gujrat Urja Vikas Nigam Ltd. V. Essar Power Ltd., 2008 (3) SCALE 469; Nair Service Society V. Dr. T. Beermasthan and others, 2009 (4) SCALE 435; and SI Paras Kumar and others V. SI Ram Charan and others, (2004) 6 SCC 88.
6. We have given our utmost consideration to the arguments of the learned counsel for the parties and the judicial precedents cited by them in support of their contentions.
7. The deconstruction of Rule 19 (ii) ibid would reveal that:
(1) out of turn promotion is given to persons of outstanding qualities mentioned therein, including the officials who have shown exceptional gallantry, the category in which the applicants before us are included;
(2) such promotions shall not exceed five per cent of the vacancies likely to fall vacant in a given year in the rank;
(3) such promotions shall be treated as ad hoc;
(4) these promotions will be regularised when the persons so promoted shall have successfully completed the prescribed training course, if any; and (5) such promotees shall be placed at the bottom of the promotion list drawn up for that year for the purpose of seniority.
In our considered opinion these parameters and only these parameters shall apply, while considering the seniority of the officials promoted out of turn. The condition precedent for out of turn promotion is some outstanding quality (of sportspersons or marksmen) or performance of some act of exceptional gallantry. The promotions have to be restricted to five per cent of the vacancies available in an year. The promotions are considered by an Incentive Committee, which decides whether the performance of an official is such as to make him eligible for out of turn promotion. The Committee will surely consider the number of vacancies available before recommending an official for promotion. The learned Full Bench in Yash Pal Singh (supra) proceeded on a wrong premise that promotion could be made beyond the available five per cent vacancies, because of wrong appreciation of the Rule by reading not immediately before in the rank, as is apparent from the discussion in the judgement of the learned Full Bench. In so far as the aspect of integrity is concerned, the Incentive Committee shall have the information about any misconduct committed by those under consideration for promotion. Such consideration has to be informed by this knowledge about the antecedents of the official under consideration. A person under cloud of suspicion for serious misconduct cannot be promoted either on normal promotion or out of turn promotion. If such inappropriate promotion is made in the normal course or out of turn, it would be subject to challenge before the courts/ Tribunal. If the promoted official is found guilty of misdemeanour after ad hoc promotion, he would be open to action. To this extent the spirit of Rule 7 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980, already quoted above, would apply in the case of promotion on out of turn basis. There is of course the clear difference that the aforesaid Rule mentions those on the Promotion List, whereas the out of turn promotees have already been promoted albeit on ad hoc basis. We are observing this only in the context of the argument on behalf of the respondents about the applicability of Rule 7 (ii) ibid. We may observe that the argument has no relevance to the issue under consideration in the instant case as Rule 7 (ii) is not germane to the issue. It would be necessary for the purpose of regularisation that the out of turn promotees should pass the prescribed test, if any. The natural corollary would be that if there is no such course prescribed, like in case of the Inspectors, such promotees would be considered to be regularised on being promoted out of turn. The last condition is regarding seniority. The only issue is as to how the words that year should be interpreted. There is not even the remotest suggestion in Rule 19 (ii) that that year would allude to the year in which the eligibility Lists A, D, E and F are prepared under Rules 12 -17 ibid. We are very clear in our mind that that year refers to the year in which out of turn promotion is granted to the official so promoted. For example, in case of Abdul Nazeer Kunju, the applicant, that year would refer to the year 1995, when he was promoted on out of turn basis. He would be placed at the bottom of the Promotion List of 1995 and not 1999, when the constables recruited with him became eligible for inclusion in the Promotion List. The conditions prescribed in Rule 12 (i) (a) ibid shall not apply to him.
8. In Rajbir Singh (supra) the facts were that the respondent, Rajbir Singh, was promoted to the grade of Inspector on out of turn basis on 05.08.1994. On 12.08.1994 a meeting of the Departmental Promotion Committee was held, which also found the respondent eligible for promotion. He was promoted to the post of Inspector on regular basis on 18.08.1994. Rajbir Singh filed an OA before this Tribunal claiming seniority from 05.08.1994. The Tribunal held thus:
9. In our view, when persons promoted to the rank of Inspector are not required to undergo any training course, no purpose seems to be served by treating such promotion as ad hoc. The provisions relating to treatment of such promotions as ad hoc appears to be relating to promotions to the ranks other than that of Inspector. If promotions to the rank of Inspector are treated as regularised on promotion under Rule 19 (ii) ibid there would be no violation of the provisions of this Rule. Promotions as Inspector (Exe.) under Rule 19 (ii) for which no training course is prescribed can be treated as regularized straightaway. Such treatment will not cause any hindrance for placement of such promotees for purposes of seniority at the bottom of the promotion list drawn for that year under this rule. The Delhi High Court, in the Writ Petition (C) before it, observed thus in its judgement that:
A bare perusal of the aforementioned Rule would clearly go to show that for the purpose of seniority of the respondent herein, even if at one point of time, he was promoted on out of turn basis, he was to be placed at the bottom of the promotion list drawn up for that year.
6. It is not in dispute that regular promotion in this case has been made within a period of one week, the respondent along with others had also been promoted on regular basis. Once he was promoted on regular basis his position in the said seniority list would be as per rules. Even if it be considered that he had been promoted in terms of the aforementioned Rule 19 (ii) of the said Rules, his seniority would be at the bottom of the list. And:
In this view of the matter, it is not necessary for us to consider as to what would be the effect if a person is granted out of turn promotion, but the regular promotion takes place after a number of years. The only issue settled here is that in case of promotion from Sub-Inspector to Inspector, as in the case of Brahmjeet Singh, an applicant in one of the OAs before us, although the official promoted out of turn will be regularised from the date of such promotion, but for the purpose of seniority he would be placed at the bottom of the Promotion List of that year.
9. We have considered the judgements cited by the learned counsel for the respondents. In Gujrat Urja Vikas Nigam Ltd. (supra), the Honourable Supreme Court has, inter alia, held that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. Ordinarily the literal rule of interpretation should be followed and, therefore, courts should neither add nor delete words in a statute. In fact we have followed precisely this approach in discussing Rule 19 (ii) ibid. The said Rule is so explicit and unambiguous that there is no need to use intricate principles of interpretation of statutes to unravel its meaning. In Nair Service Society (supra) it was held that where the language of the Act or the Rules is clear and explicit, the words of the statute alone represent the intention of the legislature. We have, as stated earlier, consciously followed this rule. In Paras Kumar (supra) the issue before the Honourable Supreme Court was whether out of turn promotion based upon courage on anti-terrorist front or outstanding performance in sports by the Director General of Police was permissible under the format of the Punjab Police Rules, 1934. This has no relevance to the issue in hand.
10. In the light of the above discussion we are of the view that the correct interpretation of Rule 19 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 is that the official(s) promoted out of turn in any year shall be placed, for the purpose of seniority, at the bottom of the Promotion List of the year in which out of turn promotion is given. The judgement of the Full Bench in Sub-Inspector Yash Pal Singh is overruled.
11. Having answered the issue raised before us, we remit the OAs back to the DBs for deciding these on merit.
12. Before we part with this order, we make it clear that we have not considered the issue regarding the mandatory requirement of preparing the Promotion Lists every year, as was argued by the learned counsel for the Applicant in Abdul Nazeer Kunju. In that case Promotion List A for the year 1995 was not prepared. The Applicant was not sent for training course after promotion in 1995 but only later in the year 1999. We have not expressed any opinion on these matters and it would be for the Division Bench to decide the same. The purport of our decision is that an official promoted out of turn in any year would be placed at the bottom of the Promotion List of that particular year in which he was promoted out of turn.
( V.K.Bali ) Chairman ( L.K.Joshi ) Vice Chairman (A) (Shailendra Pandey ) Member (A) ( Dr. Veena Chhotray) Member (A) (Dr. Dharam Paul Sharma) Member (J) sk