Central Administrative Tribunal - Delhi
Asi Sheeshpal (Pis No.28800376) vs Govt. Of Nct Delhi Through on 8 July, 2015
Central Administrative Tribunal
Principal Bench:New Delhi
OA No.3800/2013
Reserved on: 01.07.2015
Pronounced on:08.07.2015
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K.Bhardwaj, Member (J)
ASI Sheeshpal (PIS No.28800376)
S/o Late Sh. Hasti Ram, R/o D-248, Gali No.5,
Prem Nagar, Najafgarh, New Delhi-43. Applicant
(By Advocate : Shri U. Srivastava )
VERSUS
Govt. of NCT Delhi through
1. The Chief Secretary,
Govt. of NCT of Delhi, Delhi Secretariat,
New Delhi.
2. The Commissioner of Police,
Police Headquarters, I.P. Estate (I.T.O.)
New Delhi. Respondents
(By Advocate: Mrs. Rashmi Chopra)
ORDER
Per Sudhir Kumar, Member (A):
In this 4th round of litigation, the applicant of this OA is before us, praying for out of turn promotion, which request of his was pending earlier with the respondents. He had first filed OA No.462/2010, which was disposed off vide order dated 11.01.2010, at the admission stage itself, even without issuing notice to the respondents, with the following orders:
Mr. Srivastava, learned counsel for the applicant submits that representation filed by his client is pending with the respondents and it may be disposed of in a time bound manner.
2. The representation is Annexure A-2. We do not think it is necessary to issue notice to respondents in view of the limited relief as prayed for. It will be appreciated that the representation as above be taken and disposed of by the Commissioner of Police on its merit within a period of two months from the date of receipts of a copy of this order.
3. Office is directed to forward a copy of this order along with a copy of this OA to Commissioner of Police.
2. Thereafter, his representation was rejected by the respondent-authorities through order dated 12.03.2010 (Annexure A-7) with the following observations:
In the light of the above mentioned facts based on the documents, the Committee feels that HC Sheesh Pal, No. 52/DRP does not deserve an out of turn promotion in consonance with rule 19 (ii) of Delhi Police ( Promotion & Confirmation) Rules 1980 which reads officers who have shown exceptional gallantry and devotion to duty may be promoted on out of turn basis by the Commissioner of Police. The Commissioner of Police, Delhi, has carefully examined the recommendations of the Incentive Committee. He is in full agreement with the recommendations. In this particular case, there is no specific mention in the FIR of any details regarding any exemplary act of gallantry by HC Sheesh Pal. He was merely a member of a team of Crime Branch which was engaged in an encounter in which Naresh @ Neshi was killed. HC (Exe.) Sheesh Pal did not exhibit any exceptional act on his part, which distinguishes him from other members of the police party in considering him for an out of turn promotion.
In view of this, it does not seem to be a fit case for out of turn promotion, Representation of HC Sheesh Pal is thus void of merits & hence rejected.
He may please be informed accordingly.
(Ishwar Singh)Addl.DCP/Estt For Commissioner Police Delhi DCP/3rd Bn. DAP, Delhi No.12723 /CB-IV/PHQ Dated 12/3/2010.
3. The applicant thereafter filed his 2nd OA No.1290/2010, challenging the validity of the order dated 12.03.2010, which also came to be disposed off vide order dated 21.01.2011, in which some similarity of his case with another bunch of OAs was observed (OA No.3681/2009 & connected cases SI Umesh Barthwal vs. GNCT of Delhi & Others). Para 5 of the order passed in his OA No. 1290/2010 reads thus:
5. In the facts and circumstances of the case and for parity of reasons, this OA is allowed in terms of the order in SI Umesh Barthwal case (supra) to the extent that the impugned order is set aside and the respondents are directed to consider the applicants case for out of turn promotion on the basis of recommendations of the earlier incentive Committee. Upon such consideration, if the applicant is granted promotion, the same will be prospective in effect. The exercise will be complete within two months from the date of receipt of a certified copy of this order. No order as to costs. (Emphasis supplied)
4. The applicant then again represented to the Chief Secretary, GNCT of Delhi, through proper channel, on 16.05.2011 (Annexure A/9). He also filed his third OA No.1129/2012, which was dismissed as withdrawn on 04.04.2012 (Annexure A-10), with the following orders:
After arguing the case for some time, Shri U. Srivastava, learned counsel for the applicant wishes to withdraw this OA with liberty to avail appropriate remedies. With leave and liberty granted as sought for, the OA is dismissed as withdrawn.
5. The applicant had thereafter represented to the Chief Secretary again through Annexure A/12. He is now again before this Tribunal because the Honble Delhi High Court had in W.P.(C) No.5203/2012, in the case of Umesh Barthwal vs. GNCT of Delhi and Others and four other connected petitions, through its order dated 17.07.2013, clarified its earlier decision dated 06.03.2013, and substituted the same by a fresh direction, which is as follows:
8. Accordingly, we substitute paragraph 8 and 9 of the decision dated March 2006, 2013 to read as under:-
8. Same benefit not having been accorded to HC Yashpal and HC Surender they filed Original Applications claiming to be brought at par with their team mates. The application was allowed with a direction by the Tribunal that HC Yashpal and HC Surender be given out of turn promotion and brought at par with their teammates with effect from December 15, 2006.
9. Based on the directions issued by the Tribunal benefit as directed was given by the Department to HC Yashpal and HC Surender.
9. Applications stand disposed of.
Pradeep Nandrajog, J V.Kameshwar Rao, J.
July 17, 2013.
6. Heard. The applicant sought parity with the orders of the Honble Delhi High Court in Umesh Barthwal vs. GNCT of Delhi and Others (supra). It was pointed out that in para 4.16 of their counter reply, the respondents had taken the stand, which is as follows:
As regards his application dated 12.8.13, the same has already been returned through Principal/PTC on 11.10.13, with the directions to submit the same through proper channel along with the copies of relevant enclosures. Thereafter no application is received in this Hd. Qrs. so far.
7. On the other hand, learned counsel for the respondents pointed out that the prayer of the applicant would be hit by the principle of res judicata, because, in its specific order dated 20.01.2010 in OA No.1290/2010 (supra), this Tribunal had directed that if the applicant is granted promotion, the same will be prospective in effect.
8. Learned counsel for the applicant submitted that the applicant would be satisfied if he is permitted to file a fresh representation to the Commissioner of Police, seeking out of turn promotion with retrospective effect, from the back date, instead of ad-hoc promotion on out of turn basis granted to him with immediate effect, as per the impugned order dated 19.04.2011.
9. After having considered all the relevant documents and the earlier Orders of this Tribunal, and the Honble Delhi High Courts judgment, we find that the case of the applicant had been considered on merits in this Tribunals order dated 20.01.2010 in OA No.1290/2010, wherein a specific direction had been given that if the applicant is granted promotion, the same will be prospective in effect. That order stands as on today. Therefore, to that extent, there is nothing wrong or illegal in the impugned order, as passed by the respondents on 19.04.2011. As on today, we cannot re-appreciate the facts of the case of the applicant, which had been finally decided on 21.01.2011, and the contention of the learned counsel for the respondents that the instant case of the applicant is hit by the principle of res judicata is correct. Therefore, as on today, no direction different from that as given on 20.01.2010 can be issued by this Tribunal, by revisiting the case. If the applicant still seeks to avail the benefits at par with the Honble Delhi High Courts order dated 17.07.2013 in Umesh Barthwal vs. GNCT of Delhi and Others (supra), he would be at liberty to avail appropriate remedy, in accordance with law.
10. In view of above, the OA is dismissed, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /kdr/