Central Administrative Tribunal - Delhi
Rahul Kumar Singh vs Comm. Of Police on 17 July, 2023
1
Item No. 49/ C-3 O.A. No.1306/2016
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1306/2016
This the 17th day of July, 2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Inspr. Rahul Kumar Singh,
S/o Late Shri Babu Singh, 45- years,
R/o I-707, SPS Residency,
Vaibhav Khand,
Indrapuram, Ghaziabad (UP)
...Applicant
(By Advocates: Mr. Sachin Chauhan)
Versus
1. GNCT of Delhi
Through Ltd. Governor
Govt. of NCT of Delhi,
Raj Niwas, Delhi
2. The Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Buiding, New Delhi.
3. The Dy. Commissioner of Police,
Establishment,
Through Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Builiding, New Delhi
4. Inspr. Jitender Singh (D/3762)
5. Inspr. Rajpal Dabas (D/882)
6. Inspr. Ved Prakash (D/3451)
7. Inspr. Raj Kumar (D/3467)
8. Inspr. Pawan (D/1187)
9. Inspr. Kailash Bisht (D/725)
10. Inspr. Vivekanand Jha ( D/ 3944)
11. Inspr. Umesh Bhartwal ( D/3650)
12.Inspr. Dharemder Kumar (D/424)
...Respondents
(By Advocate: Mr. Puneet Rathi for Ms. Rashmi Chopra)
2
Item No. 49/ C-3 O.A. No.1306/2016
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) The present Original Application (OA) has been filed by the applicant seeking the following relief:-
"(i) That the Order dated 25.01.2016 be set aside and the Order dated 26.12.2014 is being challenged to an extend whereby the applicant is being granted the promotion to the rank of inspector on out of term basis w.e.f 14.11.2008 i.e from the date of availability of vacancy of OTP quota in the rank of Inspr. (Exe) under Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 instead of 30.03.2006 and to further direct the respondent to grant the seniority of the applicant the rank of Inspector on his out of turn promotion w.e.f 30.03.2006 with all consequential benefits.
Or/and
(ii) Any other relief which this Hon‟ble Court deems fit and proper may also be awarded to the applicant."
2. BRIEF FACTS:-
2.1 This is the second round of litigation. Learned counsel for the applicant draws reference to the other round of litigation, whereby the Hon'ble High Court of Delhi in W.P.(C) No. 6910/2013, titled Govt of NCT of Delhi & Ors Vs. Rahul Kumar Singh on 23.04.2023 has dismissed the matter. The relevant paragraphs of the same read as under:-
"14. We note that the petitioner had issued an order in promoting Akhileshwar Yadav, the respondent in the abovesaid case as Inspector (Executive) pursuant to the order of this Court in W.P.(C) 6015/2010.
15. We agree with the conclusion of the Tribunal in para 7 of the impugned order, which reads as under:
"7. We have heard the learned counsel for the applicant Shri Saurabh Ahuja and the learned proxy counsel for 3 Item No. 49/ C-3 O.A. No.1306/2016 respondents Sh. Madhurendra Jha. In our considered view, when the case of the team mate of the applicant SI Dharmender Kumar who was similarly placed was allowed by this Tribunal vide order dated 05.09.2011 in OA 557/2011 (supra) and the respondents have implemented the same vide their order dated 14.10.2011, there is no justification to deny the same benefit to the applicant herein. Otherwise, it will amount to invidious discrimination. We, therefore, allow this OA. Consequently, the respondents shall grant ad hoc promotion on out of turn basis to the next higher rank of Inspector (Exe.) under Rule 19 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980. The date of such promotion shall be from the due date as determined in the case of promotion given to SI Dharmender Kumar to the rank if Inspector. Consequently, the applicant‟s promotion to the aforesaid rank already granted w.e.f. 13.01.2009 shall stand pre-poned. The respondents shall pass appropriate orders in compliance of the aforesaid directions within two months from the date of receipt of a copy of this order. There shall be no orders as to costs".
16. In view of our above discussion, we do not see any merit in the writ petition. The same is dismissed."
2.2 The applicant is aggrieved by orders dated 26.12.2014 and 25.01.2016. Vide the order dated 26.12.2014, he had been granted ad-hoc promotion to the next higher rank of Inspr.
(Exe.) on out of turn basis w.e.f. 14.11.2008 i.e. the date of availability of vacancy in Out of Turn Promotion (OTP) quota in the rank of Inspr. (Exe.) under Rule 19 (ii) of the Delhi Police (Promotion & Confirmation) Rules, 1980. Vide the instant Original Application, the applicant is seeking ad-hoc promotion to the next higher rank of Inspr. (Exe.) on out of turn basis w.e.f.
30.03.2006, in place of 14.11.2008.
2.3 Learned counsel for the applicant draws attention to rejoinder to the short affidavit filed by the respondent. The 4 Item No. 49/ C-3 O.A. No.1306/2016 relevant paragraphs of the same are reproduced as under, for ready reference:-
"The applicant is reproducing the details of the Gallantry Act of the above mentioned 9 Sub Inspector is as follows:-
Sl Name of the Date of Citation placed Recommendation Approved Date of OTP No. Police Officer Brave Act before ICM passed by ICM by C.P granted.
1. SI Rahul Kumar 30.12.2004 14.09.2005 04.12.2006 04.12.2006 14.11.2008 Singh (Applicant)
2. SI Dharmender 30.12.2004 14.09.2005 04.12.2006 04.12.2006 14.09.2007 Kumar (Teammater)
3. SI Jitender 28.06.2005 25.10.2005 25.10.2005 25.10.2005 30.03.2006 Singh
4. SI Rajpal Dabas 05.03.2005 14.12.2005 14.12.2005 14.12.2005 19.06.2006
5. SI Ved Prakash 02.08.2005 14.12.2005 14.12.2005 14.12.2005 19.06.2006
6. SI Rajkumar 10.09.2005 14.12.2005 14.12.2005 14.12.2005 20.10.2006
7. SI Pawan Kumar 25.04.2005 14.12.2005 14.12.2005 14.12.2005 08.05.2007
8. SI Kailash 20.11.2005 19.04.2006 19.04.2006 19.04.2006 08.05.2007
9. SI Vivekanand 13.10.2005 12.04.2006 12.04.2006 12.04.2006 08.05.2007 Jha
10. SI Umesh 06.03.2006 27.06.2006 04.12.2006 05.12.2006 15.12.2006 Bharatwal It is an admitted fact SI Dharmender Kumar (Teammate) has been given seniority w.e.f. 14.9.2007 despite the fact that the applicant is senior to SI Dharmender Kumar. SI Umesh Bharatwal has been promoted as Assistant Commissioner of Police despite SI Umesh Bharatwal being junior to applicant and further his gallantry act being subsequent to the applicant, he is being recommended for OTP on the same date but still being promoted as Inspector on OTP w.e.f. 15.12.2006."
2.4 Learned counsel for the applicant relies upon the following judgments passed by the Tribunal:-
(i) OA No.1122/2016, titled Insp. Pawan Kumar Vs. Govt. of NCT of Delhi decided on 30.05.2023.
(ii) OA No.1506/2016, titled Shri Vivekanand Jha Vs. Govt. of NCT of Delhi decided on 24.03.2016.5
Item No. 49/ C-3 O.A. No.1306/2016
3. The learned counsel for the respondents vehemently opposes grant of relief in the present matter relying upon the averments made in the counter affidavit and submits as under:-
(i) At the relevant point of time, the applicant would have been in the zone of consideration, however, the vacancy was not available. He further contends that the applicant made an application to implead seven persons as party respondents as he seeks seniority on the post of Inspector over them in case his plea regarding OTP is accepted. He argues that the applicant cannot seek seniority in anticipation of the OA being allowed, as OTP is entirely a separate cause of action and seeking seniority over and above those who might have also got OTP, would be premature.
(ii) He further relies upon the chart which depicts the vacancy position and status to the rank of Inspectors for the period from 01.01.2005 to 31.12.2005 filed by the respondents on 12.08.2021 along with the short affidavit.
(iii) He further submits that the applicant cannot equate himself with other applicants who were granted benefit pursuant to the judgment rendered by the Hon'ble High Court in W.P.(C) No.5203/2012 & connected matters. The relevant paragraphs of the same read as under:-
"12. The undisputed facts therefore would be that the petitioners were found being entitled to out of turn promotion. The vacancies to which they have to be adjusted would be the ones which accrued immediately in the year or 6 Item No. 49/ C-3 O.A. No.1306/2016 the year thereafter as also the further year thereafter, till a vacancy became available in the 5% quota for the first time. This view has already been taken by a Division Bench of this Court, which has attained finality. Two other similarly placed persons have been granted notional promotion from the date when vacancy for their post accrued in the promotional post.
13. Thus, we dispose of the petitions directing that the petitioners would be entitled to the same benefit of notional promotion as has been granted by the Department to HC Yashpal and HC Surender. The petitioners would be granted notional promotion with effect from the date when vacancies ensued in the promotional posts. The petitioners would be entitled to seniority in the promotional post by treating them as having been promoted from said date as per the rule applicable to inter-se seniority of promotees and direct recruits. Denying actual wages on the principle of not being entitled to wages for a higher post on account of not discharging the onerous duties of the higher posts, petitioners would be entitled to be notionally placed in the pay scale of the promotional post and receive notional pay increment, with actual pay with the benefit of notional pay increment from the date they assumed charge of the promotional post.
14. Compliance be made within 12 weeks from today."
(iv) To strengthen his arguments, learned counsel relies upon the judgment rendered by the Hon'ble Apex Court on 28.03.2023 in Sunil Kumar Soni Vs. State of Rajasthan and Ors, wherein it has been held that according to the doctrine of negative equality, if there has been a benefit or advantage conferred upon one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.
(v) He further draws reference to decision dated 27.09.2017 in OA No. 630/2016, titled Sukhbir Singh Vs. Govt. of NCT of Delhi and Ors., the relevant paragraphs of the same read as under:-
7Item No. 49/ C-3 O.A. No.1306/2016 "5. Admittedly, out of turn promotion was given to Constable Rajbir Singh and Constable Rishi Raj in the year 2005, and the President‟s Police Medal for Gallantry was awarded to the applicant in the year 2007. If at all the applicant had any grievance regarding non-grant of out of turn promotion to him, he could have made a representation to the departmental authority-respondents either in the year 2005 when the said two Constables were granted out of turn promotion or in the year 2007 when he was awarded Police Medal for Gallantry, and in the event of his grievance not being redressed by the departmental authority- respondents, he could have approached the Tribunal within the prescribed period of limitation. The applicant chose not to avail of either of the remedies till November 2013 when he made a representation to the departmental authority-respondents for granting him out of turn promotion on the grounds that there was no difference in the role played by him and the role played by the aforesaid two Constables in the operation leading to encounter of dreaded criminal Aman Kumar on 1.9.2005. Therefore, we are of the considered view that the applicant‟s claim for out of turn promotion, as per his representation made in the year 2013, is clearly barred by delay and laches, and there is no infirmity in the impugned orders passed by the respondents in not acceding to the applicant‟s claim after a period of more than 8 years. This view of ours is fortified by the decisions of the Hon‟ble Supreme Court in C. Jacob vs. Director of Geology and Mining and another, (2008) 10 SCC 115, and in Union of India and others v. M.K. Sarkar, (2010) 2 SCC 59. In C.Jacob vs. Director of Geology and Mining and another (supra), the Hon‟ble Supreme Court has held that every representation to the Government for relief may not be replied on merits. Representations relating to matters which have become stale or barred by limitation can be rejected on that ground alone without examining the merits of the claim. The replies to such representations cannot furnish a fresh cause of action or revive a stale or dead claim. In Union of India and others Vs. M.K. Sarkar(supra), the Hon‟ble Supreme Court, after referring to C.Jacob vs. Director of Geology and Mining and another (supra), has ruled that when a belated representation in regard to a „stale‟ or „dead‟ issue/dispute is considered and decided, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the „dead‟ issue or time- barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed by the Department.
xxx xxx xxx
7. The contention of the applicant that even in the absence of recommendation/citation being given by the controlling officer in favour of certain police officials for granting them out of turn promotion, the respondents, in the past, granted out of turn promotion to those police officials and, therefore, 8 Item No. 49/ C-3 O.A. No.1306/2016 the plea of absence of recommendation/citation by the controlling officer in the case of the applicant, as raised by the respondents, is a clever ruse, and there was no impediment for the respondents to consider and grant him out of turn promotion. As per the rules/practice/instructions, the controlling officer has to assess the role played by each of the police personnel involved in an incident and send recommendation/citation to the higher authority. After due approval of the higher authority, the matter is placed before the Incentive Committee for consideration as to whether or not the police official recommended to be given out of turn promotion deserved so and thereafter take appropriate decision. If at all the respondents have granted out of turn promotion to any personnel in the absence of citation/recommendation in his favour by the controlling authority, the same would not confer a right on the applicant to claim similar benefit on the principle of equality. The doctrine of discrimination is founded on existence of an enforceable right. Article 14 of the Constitution of India would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. Article 14 of the Constitution of India is not meant to perpetuate illegality, and does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the applicant to get the same relief. One may be wrong, but the wrong order cannot be the foundation for claiming equality for enforcement of the same order.
xxx xxx xxx
9. In Commissioner of Police & others v. SI Satbir Singh, W.P.(C) No.10733 of 2009, decided on 9.8.2010, it has been held by the Hon‟ble High Court of Delhi that out of turn promotion being by way of a special benefit cannot be claimed as a matter of right, and that special incentives can never rank at par with statutory rights."
4. In a nutshell, learned counsel for the respondents states that the case of the applicant, i.e., Rahul Kumar Singh, was approved by the Commissioner of Police for the benefit of OTP on 04.12.2006 w.e.f. 14.11.2008. During the intervening period between 04.12.2006 and 14.11.2008, there was no vacancy available to accommodate him. However, in similar matters, as 9 Item No. 49/ C-3 O.A. No.1306/2016 per the directions given by various courts in the case of other applicants, they were granted OTP. Hence, there was no vacancy available to accommodate the applicant between 04.12.2006 and 14.11.2008.
5. We have heard learned counsel for the parties and perused the pleadings available on record as also the citations cited by both the parties.
6. ANALYSIS:-
6.1 Learned counsel for the applicant draws reference to decision in the case of a similarly situated person, i.e., Pawan Kumar in OA No. 1122/2016, decided on 30.05.2023. For the sake of clarity, the order is reproduced in toto:-
"The applicant has filed the present OA seeking the following relief(s):-
"i) quash and set aside impugned order dated 25.03.2015 being arbitrary and illegal; and
ii) direct the respondents to grant out of turn promotion to applicant in the rank of Inspector (Exe.) w.e.f. 21/12/2005, when his team member was granted OTP; and
iii) quash and set aside impugned order dated 19/11/2015, whereby date of regularization and seniority has wrongly fixed; and
iv) direct the Respondents to place the name of Applicant at the bottom of the promotion list of Inspectors (Exe.) drawn up for the year 2005 or in any case his name may be placed above Inspector Umesh Barthwal in the seniority list of Inspectors (Exe.) with all consequential benefits including seniority, promotion etc.; and 10 Item No. 49/ C-3 O.A. No.1306/2016
v) pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The counsel for the applicant takes us through the history and background of this case. The applicant, who was appointed as Sub-Inspector (Exe.) in Delhi Police in 1997, displayed exemplary gallant act and extraordinary good work on 25.04.2005 and accordingly on 14.12.2005, the name of the applicant along with his teammates was approved for grant of an "out of turn promotion" by the Commissioner of Police. The teammate of the applicant namely, Ct. Rustam Ahmed was granted out of turn promotion w.e.f. 21.12.2005, while the applicant was granted the "out of turn promotion" to the rank of Inspector w.e.f. 08.05.2007.
Similarly, situated persons approached the Hon‟ble High Court of Delhi in a Writ Petitions (C) the lead case being No.5203/2012- Umesh Barthwal Vs. Govt. of NCT of Delhi and Ors., while deciding the same, the Hon‟ble High Court of Delhi directed that the petitioners therein would be entitled to the same benefits of notional promotion as has been granted by the department to their teammates. In compliance of the said judgment, the respondents by order dated 24.01.2014 granted out of turn promotion to SI Umesh Barthwal to the rank of Inspector (Exe.) from the date of promotion, i.e. on 24.01.2014. The applicant being identically placed as SI Umesh Barthwal preferred a representation to the respondents seeking the same benefit on the analogy of the Hon‟ble High Court judgment dated 06.03.2013 (supra), followed by reminder dated 01.11.2014. However, during the pendency of the representation, the applicant preferred an OA No.756/2015 for redressal of his grievance. The same was disposed of by this Tribunal with a direction to the respondents to consider the pending representation dated 21.02.2014 by way of passing a reasoned and speaking order.
Learned counsel for the applicant argues that by impugned order dated 25.03.2015, the cause of the applicant was rejected by the Competent Authority is bad in law arbitrary and discriminatory in nature. He goes on to elaborate that on 19.11.2015, the respondents have regularized the ad hoc promotion of Umesh Barthwal Inspector (Exe.) "Out of turn promotion" basis. From 15.12.2006, while the date of regularization of the applicant has been reflected as 11 Item No. 49/ C-3 O.A. No.1306/2016 27.02.2008. Further, in by the same order, three other persons namely, Raj Kumar Atri, Neeraj Kumar and Kailash Singh Bisht have been placed above the applicant. Aggrieved by the same, the applicant has filed the present Original Application.
3. In support of his claim, the learned counsel for the applicant draws attention to Paragraph 4.19 wherein a comparative chart of the said persons detailing the cause for grant of „out of turn promotion‟ along with the date of ad-hoc promotion. For the sake of clarity the same is reproduced herein below:-
Name Date of Date of Date of OTP Date of Ad-
Action Approval of team hoc
Member promotion
Umesh 7/3/2006 5/12/2006 15/12/2006 15/12/2006
Bharthwal
Raj Kumar ____ 12/5/2006 _____ ____
Atri
Neeraj 25/4/2006 26/4/2007 24/7/2007 24/7/2007
Kumar
Kailash 20/11/2005 19/4/2006 28/4/2006 8/5/2007
Singh
Bisht
Applicant 25/4/2005 14/12/2005 21/12/2005 8/5/2007
Learned counsel for the applicant argues that, the date 08.05.2007 from which the applicant has been granted OTP was arbitrary not only qua his team mates but his counterparts as well, He clarifies that brave act for which the applicant and his teammates were granted OTP was dated 25.04.2005, the team member of the Applicant was granted the OTP on 21.12.2005 itself, the date of act of bravery of the counterpart of the applicant Inspector Umesh Bhartwal relates back to 07.03.2006 and he has granted ad hoc promotion on 15.12.2006. He further draws attention to the impugned order dated 25.03.2015 and states that the cause of action, in fact, arises from the date when the OTP was granted to Mr. Umesh Barthwal Inspector (Exe.) vide order dated 19.11.2015, therefore, there was no delay in pursing his claim before the respondents. He adds that the reason as adduced in the impugned order that "since the requisite vacancies, were not available", the 12 Item No. 49/ C-3 O.A. No.1306/2016 applicant could not be granted out of turn promotion could not be a reason for the discriminatory treatment meted out to the Applicant. He draws attention to the judgment passed by this Tribunal in OA No.1506/2016 decided on 24.03.2023 and argues that the facts of the present case are identical and seeks that the same benefits be extended to the applicant for the reasons of parity.
4. Learned counsel for the respondents vehemently opposes the O.A. and states that admittedly the applicant did not approach the respondents for redressal of his grievance at the appropriate time and it is only after the Hon‟ble High Court of Delhi decided the cause of Inspector Umesh Barthwal in Writ Petition No.5203/2012, the applicant for the first time preferred his representation before the respondents, therefore, there was a delay of about 07 years, which was not only inordinate but untenable. He draws attention to the judgment rendered by a coordinate Bench of this Tribunal in OA No.630/2016 decided on 27.09.2017 wherein while relying upon the judgment of Hon‟ble High Court of Delhi in Writ Petition (C) No.10733/2009 decided on 09.08.2010, this Tribunal has concluded that "out of turn promotion" by way of a special benefit cannot be claimed as a matter of right, and that special incentives can never rank at par with statutory rights. He further draws support from the judgment rendered by the Hon‟ble Apex Court in SLP (C) No.1040/2021-The State of Madhya Pradesh & Anr. Vs. Sanjay Shukla decided on 27.03.2023 wherein the Hon‟ble Apex Court has held that the out-of-turn promotion could not be claimed as a matter of right. Further, the case for out-of-turn promotion was required to be considered objectively if the case fell within any of the categories mentioned in Regulation 70A. The relevant Regulation once again reiterated that out- of-turn promotion could not be claimed as a matter of right. The relevant paragraph of the said judgment reads as under:-
"Now, so far as the parity claimed by the respondent which came to be accepted by the learned Single Judge is concerned, there cannot be any parity so far as claiming out-of-turn promotion is concerned. The facts differ from person to person and officer to officer and Act to Act. Therefore, in case of out-of-turn promotion, there cannot be any parity claimed."13
Item No. 49/ C-3 O.A. No.1306/2016
5. Heard the learned counsel for both the parties.
6. It is seen that the facts, issues and the relief prayed for in the present O.A. are identical to O.A. No.1506/2016 titled Shri Vivekanand Jha Vs GNCTD decided on 24.03.2023 by a coordinate Bench of this Tribunal. It is seen that the very same objection with respect to delay has been raised in the aforesaid O.A. as well. On examination of the impugned order, we may conclude that though, it is mentioned that the applicant has approached the respondents after a delay of 7 years, the cause of the applicant has been decided on merits, therefore, the objection w.r.t. delay cannot sustain. For the sake of clarity, judgment in O.A. No.1506/2016 Shri Vivekanand Jha Vs GNCTD decided on 24.03.2023 is quoted herein below:
In the preset application, the applicant seeks following reliefs:
"8 (i) Pass an order quashing and setting aside the order dated 27.03.2015 and extend the benefit of judgment dated 06.03.2013 passed by Hon‟ble Delhi High Court in W.P. (C) No. 5203/2012 & other connected matters to the Applicant also and in pursuance of the abovementioned judgment, the seniority of the Applicant on his OTP to the rank of Inspector(Exe.) may kindly be ante-dated to
28.04.2006 (i.e. the date when his first teammate (Ct. Pankaj Sharma) was granted OTP) and above Inspectors Umesh Barthwal & Kailash Bisht along with consequential benefits viz. seniority, promotion etc. for which the Applicant shall forever be grateful.
(ii) Pass any other further orders/directions as may be deemed necessary and fit in the facts of this case."
2. The applicant in support of his contention would contend that Annexure-A1, (the impugned order dated 27.03.2015), passed by the Competent Authority is bad in law, arbitrary and discriminatory in nature. He draws attention to the contents of the said impugned Order dated 27.03.2015, which is reproduced herein below for the sake of clarity:-
14Item No. 49/ C-3 O.A. No.1306/2016 "The delay is inordinate and is not tenable. The department is not functioning at his whims and choice to get the orders in his favour. Besides, the case of SI Umesh Barthwal (now Inspr.)who had filed the above said W.P{C) No. 5203/2012, is not similar to the case of the Inspr. (Representationist) because the name of SI Umesh Barthwal (now Inspr.) was recommended and approved by the ICM and CP Delhi for OTP to the next higher rank but he could not be promoted for want of vacancy of OTP quota in the rank of Inspr. Later on his case along-with other cases was reviewed by the Incentive Committee afresh. The Incentive Committee felt that they does not deserve for out of turn promotion as per Rule-19 (ii) of the Delhi Police (Promotion & Confirmation) Rules, 1980. The then C.P. Delhi also approved the recommendations of the Incentive Committee. SI Umesh Barthwal was promoted to the rank of Inspr. (Exe.) on OTP basis with immediate effect vide notification dated 11.4.2011 only on the directions of the Hon'ble CAT and later on granted seniority from retrospective effect on the directions/judgement of the Hon'ble High Court of Delhi. His case for the grant of out of turn promotion and seniority was decided by the orders of Hon‟ble CAT (dated 1.6.2010 in OA No. 3681/2009) and Delhi High Court (dated 6.3.2013 read with dated 17.3.2013 in W.P.(C) No.5203/2012) respectively, but the case of Inspr.
Vivekanand Jha (representationist) was decided by the department itself and promoted him to the rank of Inspr. (Exe.) on OTP basis after availability of vacancies of OTP quota in the rank of lnspr. (Exe.) alongwith 02 other similar Sls."
3. On the basis of the above stated Order, learned counsel for applicant would contend that Shri Umesh Barthwal, who was promoted by the rank of Inspector had done a brave act on 06.03.2006, whereas the applicant has done the brave act on 13.10.2005. The Impugned Order denies the said benefit to the applicant merely on the ground that, that there is a substantial delay and thus not maintainable. It has been further highlighted that Shri Umesh Barthwal was promoted to the rank of Sub-Inspector on OTP basis with immediate effect vide Notification dated 11.04.2011, only on the 15 Item No. 49/ C-3 O.A. No.1306/2016 direction of this Tribunal, and later on granted seniority in order pursuant to direction / judgement of the Hon‟ble High Court of Delhi. He further contends that in the said case of the Shri Umesh Barthwal, the seniority was decided pursuant to the Order dated 06.03.2013 read with 17.03.2013, merely because the applicant has not approached this Tribunal cannot be a ground to deny him the promotion as granted to the Shri Umesh Barthwal (Inspector) i.e. w.e.f. 15.12.2006.
4. He also draws attention to a chart which he has placed on record, showing the relevant dates of brave act citation placed before ICM, recommendation passed and approved by ACP and date of grant of qua to Shri Umesh Barthwal, which is as follows:-
Sl. Name of the Date of Citation Recommend Approval Dated of No. Police Brave placed ations by C.P. OTP Officer Act before passed by granted ICM ICM 5
1. SI 13.10. 12.04.06 12.04.06 12.04.0 08.05.0 . Vivekanand 05 6 7 Jha
2. Umesh 06.03. 04.12.06 05.12.06 05.12.0 15.12.0 Barthwal 06 6 6 T he applicant has also filed an M.A. No. 865/2021, wherein he has placed on record a list of the details of police personnel, who were granted out of turn promotion on the recommendation of the Incentive Committee, wherein, the applicant has been placed at serial No. 78, wherein the date of IMC was 12.04.2006 and the date of approval of the applicant was 12.04.2006. However the date of actual promotion granted to the applicant as Inspector was 08.05.2007. He further draws attention to page 91, wherein, SI Umesh Barthwal is shown at serial No. 94, his date of approval i.e.
05.12.2006 and the date of actual promotion i.e. 15.12.2006. It can be seen in the last column that he was also not promoted due to non availability of the vacancy as was the case of the applicant herein.
6. Learned counsel for applicant further contends in his rejoinder vide para 5, which reads as under:
"5. The contents of para6 and 7 of the Preliminary objection are wrong and denied. That the applicant made the representation dated 24.02.2014 seeking the extension of relief/ benefit of seniority to the applicant with effect from 28.04.2006 i.e. date when his first team mate Constable Pankaj Sharma was granted OTP, in view of the effect and 16 Item No. 49/ C-3 O.A. No.1306/2016 implementation of judgment passed by the Hon'ble High Court at Delhi in WP (C) No. 5203/ 2012 "Umesh Barthwal Vs GNCT Of Delhi & ors." dated 06.03.2013, wherein it was held that notional promotion would be granted from the dates when the vacancy ensued."
7. He further draws attention to Annexure-A3 (page 24) that one Shri Pankaj Kumar, who was the Head Constable (E), was granted promotion in his category on 28.04.2006.
8. Learned counsel for applicant also draws attention to citation for out of turn promotion at page 14, which is as under:-
"This is a citation for out of turn promotion of SI Vivekanand Jha, D- 3944, PIS NO.
16980014 to the rank of Inspector, HC Sukhbir Singh NO. 475/SB PIS. NO.
28824078 to the rank of Assistant Sub Inspector and constable Pankaj Sharma NO.9782/DAP PIS NO 28031218 to the rank of Head Constable for their extraordinary good work and exemplary gallant act exhibited during the elimination of dreaded, notorious and wanted interstate gangster of Bihar, Guddu Sharma @ Guddu Singh @ Jai Prakash Narain S/O Sh. Sudama Singh @ Ram Naresh Singh R/O- Vill. Saraiya, PS Gori Chak, Patna, Bihar on 13/10/05 at slip road downward, Pandav Nagar, NH-24, Delhi and recovery of arms and ammunitions were also affected.
One 38 bore revolver, 5 spent and one live cartridges were recovered from the possession of dreaded gangster Guddu Sharma @ Guddu Singh and one pistol of 7.65 bore along with 3 live cartridges was also recovered from his close associate Satish Sharma. The police party fired total 15 rounds during the shoot out. A case vide FIR No. 517/05 dated 13/10/2005 u/s 307/186/353 IPC & 25/27 Arms Act was registered at PS Pandav Nagar Delhi in this regard."
9. The other limb of the argument of the learned counsel for the applicant is that as per his information, 221 Sub-Inspectors were promoted to the rank of Inspector in 2006 in normal course. Hence, as per the Rule 19 (ii) 5% Quota under Rule quota comes 17 Item No. 49/ C-3 O.A. No.1306/2016 to 11 vacancies, which would have been available in the year 2006, to depict this he places reliance upon a chart placed at Annexure-A2 (page 95):-
Sl. Rank Name Date of Date of Actual
No. incentive approval date
Committee of CP of
meeting Delhi promo
tion
9 SI (Exe.) Sanjay Dutt 04.12.2000 22.06.01 02.01.
& 2006
9/13.02.01
10 SI (Exe.) Arvind Kr, D- 12, 15 & 27.04.02 02.01.
2750 16.04.02 2006
11 SI (Exe.) Akhileshwar 21.01.04 & 29.01.04 02.01.
Swaroop 27.01.04 2006
D-884
12 SI (Exe.) Ranbir Singh 15.09.04 16.09.04 02.01.
D-3443 2006
13 SI (Exe.) Anvind Kr D- 13.10.04 21.10.04 02.01.
842 2006
14 SI (Exe.) Jitender 25.10.2005 25.10.05 30.03.
Singh, 2006
D/3782
15 SI (Exe.) Rajpal 14.12.2005 14.12.05 19.06.
Dabas, 2006
D/882
16 SI (Exe.) Ved Prakash 14.12.2005 14.12.05 19.06.
D/3451 2006
17 SI (Exe.) Raj Kr, 14.12.2005 14.12.05 20.10.
D/3467 2006
18 SI (Exe.) Pawan 14.12.2005 14.12.05 08.05.
Kumar 2007
19 SI (Exe.) Vivekanand 12.04.2006 12.04.06 08.05.
Jha 2007
25 SI (Exe.) Umesh 04.12.2006 05.12.06 15.12.
Barthwal 2006
10. In the above stated chart, the applicant was at serial No. 19 and drawing analogues on the basis of the 5% quota, the applicant would have fallen in the zone of consideration in the year 2006 itself. He further draws our attention to the fact that SI Shri Umesh Barthwal was shown at serial No. 25 and was accorded the actual on 15.12.2006, that itself is discriminatory in nature and denial of promotion due to lack of vacancy could be the ground and stated by the respondents.
11. He further relies upon the decision rendered in the case of Kailash Singh Bisht Vs. Government of NCT of Delhi and Anr. (Writ Petition No. 8976/2017) decided on 13.11.2018 (page 100), where the submissions are so recorded as under:-
"Mr. Bhardwaj submits that the grant of back date promotion to Umesh Barthwal shows that in the year 2006 there were vacancies available under the 5% OTP quota for the post of Inspector. That being the position, the claim 18 Item No. 49/ C-3 O.A. No.1306/2016 of the petitioner should have been accommodated first. The further submission of Mr. Bhardwaj is that he had also contended before the tribunal that there were 11 vacancies in the 5% OTP in the rank of Inspector considering that 221 sub inspectors were promoted under Rule 17 of the Delhi Police (Promotion & Confirmation) Rules, 1960 in the year 2006. He submits that though this issue was raised before the tribunal, the tribunal has not considered the same in the impugned order."
12. Per contra, the learned proxy counsel for respondents vehemently opposes the grant of relief to the applicant and relied upon his counter reply as under:
"2. It is trite as held by the Apex Court in Nadia Distt Primary School Council Vs. Sristidhar Biswas [AIR 2007 SC 2640] that law cannot help those who sleep over their rights.
3. In T.K. Bhardwaj Vs. Director General of Audit & Others [WP (C) No.2610 of 2011], the Delhi High Court on 13/05/2011 inter-alia held:-
"The order dated 26th March, 2009 was passed by the respondent on the direction of the Tribunal and not suo motu or on their own. The said order dated 26th March, 2009 does not constitute and cannot be regarded as a fresh cause of action to challenge the earlier order dated 2nd September, 2002. It is now well settled that repeated representations do not extend the period of limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985."
13. He also states that there is a substantial delay of 8 years. The case of the present applicant cannot be equated with the case of Shri Umesh Barthwal, as there was no vacancy in existence at the point of time. He further contended that Shri Umesh Barthwal was granted actual promotion on 15.12.2006, pursuant to the order of the Hon‟ble High Court of Delhi only. The same is also recorded in the Impugned Order. It is only on the said basis Shri Umesh Barthwal was granted promotion and, therefore, the applicant herein cannot rely to the said decision passed in the case of Shri Umesh Barthwal in the facts and circumstances of the present case.
19Item No. 49/ C-3 O.A. No.1306/2016 The applicant was sleeping over his rights and as such cannot blame the department for the present situation, which has denied promotion to him. He has further contended that as and when the vacancies were available, immediately, the applicant was promoted on 08.05.2007. „
14. It is further, contended that out of turn promotion to the next higher rank of ASI (Exe.) in respect of HC (Exe.) Sukhbir Singh was not issued at that time for want of vacancies of OTP quota in the rank of ASI (Exe.). Later on, it was decided that all the cases of OTP which were approved by the Incentive Committee earlier and by the then CP but promotion could not be given in absence of vacancy should be considered by the Incentive Committee afresh. Hence, the case of the HC alongwith other cases was referred to the Incentive Committee to review the case. The Committee considered/reviewed the case of the HC and others in its meeting held on 10.05.2010, 20.05.2010 and 28.05.2010 and found that the HC does not deserve out of turn promotion as per 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. Later on, the HC filed 0A No.2304/2010 in the Ld. Tribunal. The Tribunal allowed, the said OA vide Order dated 18.01.2011. It was decided to implement the Order(s) of the Tribunal. Accordingly OTP was given to HC Sukhbir Singh 563/SB to the next higher rank of ASI (Exe.) w.e.f. 14.09.2007 i.e. the date of availability of first vacancy of OTP quota vide this Hdqrs. Notification dated 30.05.2011.
15. Learned counsel for respondents during the course of arguments orally submitted that there might be a waiting list and the department has granted actual promotion as per the vacancy position as existed in light of the provision of Rule 19.
16. No further arguments have been addressed.
17. To examine the issue in hand, we would like to highlight and reproduce Rule 19 of Delhi Police (Promotion & Confirmation) Rules, 1980, herein below:-
"19. Ad-hoc promotions.
(i) In special circumstances when there are no approved names on promotion lists, 20 Item No. 49/ C-3 O.A. No.1306/2016 and vacancies exist, the Commissioner of Police, may promote suitable officers in order of seniority to next higher rank temporarily. Such promotions shall not entitled the officers concerned to claim and right for regular appointment or seniority or for appointment to such or any other equivalent post and shall be liable to reversion without notice as soon as qualified men become available.
(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 promotions shall exceed 5 per cent of the vacancies likely to fall vacant in the given year not 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 like (Lower School Course), if any. For purposes of seniority such promotees shall be placed at the bottom of the promotion list drawn up far that year.
(iii) The Commissioner of Police, Delhi for the purpose of posting to the Police Training School and the Recruits Training Centre (DAP IVth Bn. at present) personnel or appropriate merit and talent may grant one rank promotion as an incentive purely on emergent basis up to the level of Inspector without .conferring on the promotee, any right of seniority and appointment whatsoever even if he may be borne on promotion list.
Such promotion shall revert to their substantive rank as soon as they are transferred out of training institutions and ceased to be an Inspector."
21Item No. 49/ C-3 O.A. No.1306/2016
18. On perusal of the said Rule position, it cannot be disputed that the Ad-hoc promotion are based on vacancy as exists on the date of consideration of the cases of respective employees, who has claim for an out of turn promotion i.e. the date on which the Incentive Committee holds its meeting. On perusal of the aforesaid provision, attention is drawn to the decision rendered by the Hon‟ble High Court of Delhi in batch of matter titled as Umesh Barthwal Vs. Government of NCT of Delhi (W.P.(C) No. 5203/2012), (page 26) decided on 06.03.2013, the relevant para 12 and 13 are reproduced as under:-
"12. The undisputed facts therefore would be that the petitioners were found being entitled to out of turn promotion. The vacancies to which they have to be adjusted would be the ones which accrued immediately in the year or the year thereafter as also the further year thereafter, till a vacancy became available in the 5% quota for the first time. This view has already been taken by a Division Bench of this Court, which has attained finality. Two other similarly placed persons have been granted notional promotion from the date when vacancy for their post accrued in the promotional post.
13. Thus, we dispose of the petitions directing that the petitioners would be entitled to the same benefit of notional promotion as has been granted by the Department to HC Yashpal and HC Surender. The petitioners would be granted notional promotion with effect from the date when vacancies ensued in the promotional posts. The petitioners would be entitled to seniority in the promotional post by treating them as having been promoted from said date as per the rule applicable to inter-se seniority of promotees and direct recruits. Denying actual wages on the principle of not being entitled to wages for a higher post on account of not discharging the onerous duties of the higher posts, petitioners would be entitled to be notionally placed in the pay scale of the promotional post and receive notional pay increment, with actual pay with the benefit of notional pay increment from the date they assumed charge of the promotional post."
19. In the present situation, it is seen that the date of brave act is a relevant determinative factor, which 22 Item No. 49/ C-3 O.A. No.1306/2016 has co-relation with actual promotion access to grant of promotion and out of turn promotion, in terms of Rule 19 of the Delhi Police (Promotion & Confirmation) Rules, 1980. The relevant date of brave act is the actual and real factor to be assessed by the Incentive Committee, as well as the learned Commissioner based upon the existing vacancy as on date.
20. Admittedly, as shown from the chart prepared the brave act committed by Shri Umesh Barthwal was on 06.03.2006, whereas, the applicant brave act was on 13.10.2005. The citation of the applicant was placed on 12.04.2006. However, the citation of the Umesh Barthwal was placed before ICM on 04.12.2006. The recommendations were passed in the case of the applicant on 12.04.2006, whereas, in the case of the Umesh Barthwal the recommendation was passed by ICM on 05.12.2006. It is also noticeable that in the case of SI Shri Vivekanand Jha, the recommendation passed by ICM were approved by CP on 12.04.2006. However, in the case of SI Umesh Barthwal the recommendation passed by ICM were approved by CP on 05.12.2006, which is a subsequent date. Interestingly, it is noticeable that despite the recommendation of the applicant was on time i.e. on 12.04.2006, SI Umesh Barthwal was given promotion on 15.12.2006 only on the basis of the decision rendered by the Hon‟ble High Court of Delhi, in the Writ Petition No. 8976/2017, whereas, the applicant had been promoted on 08.05.2007, inter alia contending that there was no available vacancy as on date. It is also noticeable that the same is irrational arbitrary and discriminatory in nature. As we have already noted above the date of brave relevant factor, the applicant ought not to have been discriminated qua Shri Umesh Barthwal, merely, on the ground that he did not approach the Court at relevant point of time and slept for over 8 years. It is also highlighted that in the facts of the present case, the respondents were duty bound to take appropriate corrective measures after passing of the Order(s) of the Hon‟ble High Court of Delhi ought to have been applied the same in rational manner own their own violation rather than waiting for a decision by the Court in the matter and not discriminated qua the applicant.
21. It is also relevant to point out that pursuant to the Order passed by the Hon‟ble High Court, the Competent Authority took a decision to implement the decision on 24.01.2014. It is only noticing the said discrimination qua the applicant, the applicant immediately approached the Competent Authority for rectification of the error, by way of a representation 23 Item No. 49/ C-3 O.A. No.1306/2016 dated 24.02.2014, i.e. immediately within one month from the date of passing the order in the favour of SI Shri Umesh Barthwal.
22. In the said factual matrix, the Competent Authority of the respondents, should have taken a holistic view and adjudicated the claim of the applicant on his own merit. The denial of the same, qua the finding arrived in the impugned Order that there is inordinate delay and the same is not maintainable is not only arbitrary but discriminatory deprivation of the legitimate rights of the applicant qua the case of SI Shri Umesh Barthwal. Moreover, the representation, which has been made in detail highlighting the discrimination, the Competent Authority has not dealt with the issue in time letter and spirit of Rule 19, taking out the actual vacancy position as highlighted in para 12 of the Order passed by the Hon‟ble High Court of Delhi in Writ Petition No. 8976/2017. Hence, the plea of the respondents that there is a substantial delay in the matter and the present Original Application is barred by law of limitation is mis-pleaded and untenable.
23. It is also highlighted that the case of the applicant cannot be equated with Shri Pankaj Sharma as well SI Shri Sukhbir Singh, as they were not in the category of SI as that of the applicant herein. He can equate his case only with Shri Umesh Barthwal and Shri Kailash Bisht, who were in the category of SI.
24. In the light of the above proposition, the Impugned Order dated 27.03.2015 is quashed and set aside. The applicant is entitled to grant of promotion on the date when Shri Umesh Barthwal was granted promotion i.e. on 15.12.2006. Needless to say that the applicant shall be entitled all consequential benefits on notional basis w.e.f. 15.12.2006 and his salary shall be re-fixed accordingly. The said exercise shall be completed by the Competent Authority within a period of two months from the date of receipt of a certified copy of this order.
25. The present Original Applications is disposed of, in the aforesaid terms. There shall be no order as to costs."
7. We are conscious that "out of turn promotion" cannot be granted as a matter of right. However, in the present facts the applicant has already been granted "out of turn promotion" thereby explicitly implying that the 24 Item No. 49/ C-3 O.A. No.1306/2016 respondents have recognized the exemplary gallant act and extraordinary good work done by the applicant and his team mates. Their work was evaluated by the Incentive Committee on 14.12.2005 and after taking into consideration all the facts and circumstances of the case appreciating the extraordinary gallantry and brave act of the applicant, which was stated to be beyond the call of duty, he was granted out of turn promotion. All that the applicant is seeking is out of turn promotion from the date, that is, 21.12.2005, when his teammates were granted the out of turn promotion.
8. We have no doubt in our minds that the applicant has not only been discriminated against qua his teammates but his counterparts as well. The claim of the applicant is admitted by the respondents themselves but denied for want of vacancies. This reason cannot be sustained.
9. We are convinced that the facts of the present O.A. are not only similar but also identical to the facts and issues decided in the O.A. 1506/2016 quoted in the preceding paragraphs. Further, we have no reason to take a different view from the one taken by the Tribunal in OA. 1506/2016.
10. In view of the aforesaid observations, the O.A. is allowed. Impugned Order dated 25.03.2015 is quashed and set aside. The applicant is entitled to grant of promotion on the date when Shri Umesh Barthwal was granted promotion i.e. on 15.12.2006. Needless to say, the applicant shall be entitled all consequential benefits on notional basis w.e.f. 15.12.2006 and his salary shall be re-fixed accordingly.
11. The said exercise shall be completed by the Competent Authority within a period of two months from the date of receipt of a certified copy of this order.
12. No order as to costs."
6.2 In view of the facts and circumstances, it is not disputed that the doctrine of negative equality as well as the vacancy status were not dealt with in the aforesaid judgment passed by a co-
ordinate bench of this Tribunal.
25Item No. 49/ C-3 O.A. No.1306/2016 6.3 Learned counsel heavily placed reliance on the decision rendered by the Hon'ble Apex Court which has also been dealt with in the Pawan Kumar (Supra) which has already been reproduced herein above. Needless to mention, the Hon'ble Apex Court in The State of Madhya Pradesh & Anr. Vs. Sanjay Shukla dealt with the case of out of turn promotion under Regulation 70A of the Madhya Pradesh Police Regulations. It is not disputed that out of turn promotion cannot be claimed as a matter of right. However, the Hon'ble Apex Court was of the view that the case of out of turn promotion is required to be considered on an objective basis if the case falls within any of the categories mentioned in Regulation 70A.
6.4 It is the contention of the respondents that the case of the applicant was rejected twice and it is the second round of litigation. However, the fact of the matter is that the case of the applicant is squarely covered by the reasoning given in Pawan Kumar (Supra). Noticing the factual scenario in the present matter, we are bound by the decision rendered by the Division Bench in Pawan Kumar (supra). The present applicant was at serial no. 2 and Pawan Kumar was at serial no. 7. Since benefit has been granted to Pawan Kumar, there is no plausible reason as to why the applicant has been deprived of the same.
26Item No. 49/ C-3 O.A. No.1306/2016 6.5 We are convinced that the facts of the present O.A. are identical to those of Pawan Kumar in O.A. 1122/2016 quoted in the preceding paragraphs. Thus, we have no reason to take a different view from the one taken by the Tribunal in OA No. 1122/2016.
7. CONCLUSION:-
7.1 Impugned Order dated 25.01.2016 is quashed and set aside.
The applicant is entitled to grant of out of turn promotion from 30.03.2006. Needless to say, the applicant shall be entitled to all consequential benefits on a notional basis w.e.f. 30.03.2006.
7.2 We dispose of this OA with a direction to the respondents to complete the said exercise within a period of eight weeks from the date of receipt of a certified copy of this Order.
8. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sm/sd/