Central Administrative Tribunal - Delhi
Shiv Prasad (621/Crime) vs Govt. Of Nct Of Delhi Though on 28 April, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1877/2009 This the 28th day of April 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) 1. Shiv Prasad (621/Crime) s/o Shri Chellapan Pillai r/o 76, Group I, DDA Flats Hostel Vikas Puri, New Delhi 2. Santosh Kumar (1400/T) s/o Shri Soman r/o 7/11, Village Saidula Jad New Delhi-30 3. Pravi Kumar Millapplli (783/ND) s/o Shri Pockan r/o FC-37, Police Compound Teen Murti Chanakyapuri, New Delhi-21 ..Applicants (By Advocate: Shri Shyam Babu) Versus 1. Govt. of NCT of Delhi though Its Chief Secretary Players Building, IP Estate, New Delhi 2. Deputy Commissioner of Police (Establishment) Police Headquarters IP Estate, New Delhi ..Respondents (By Advocate: Ms. Sumedha Sharma) O R D E R
Shri M.L. Chauhan:
The applicants have filed this OA thereby praying for the following reliefs:
a. call for the records of the case and quash / set aside the impugned orders dated 20th July, 2009, 21st July, 2009 and 23rd July, 2009 (Annexure-B Colly) reducing all the Applicants to the rank of Constable (Exe) in Delhi Police.
b. direct the Respondent to restore the rank of the Applicants as Head Constable (Executive) in view of prayer (a) with all consequential benefits of arrears of pay and allowances and c. pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present case.
2. Briefly stated, facts of the case are that the applicants, who were appointed as Constable (Executive) in Delhi Police on 15.1.1987, were confirmed as such after a period of two years, i.e., w.e.f. 15.1.1989. Based upon their conformation on the said post, their names were admitted to the promotion list C (Executive) w.e.f. 4.12.2008 vide Headquarters notification dated 30.12.2008 and subsequently they were promoted to the rank of Head Constable (Executive) w.e.f. 1.1.2009 respectively. Thereafter representations were received from the aggrieved Constables to the effect that their junior Constables have been promoted illegally depriving their right of promotion. Consequently, the matter was examined in the Headquarters at length and it was found that the applicants were enlisted in Delhi Police on 15.1.1987 as Constable and were wrongly confirmed in the said rank w.e.f. 15.1.1989. It was further found that they should have been confirmed w.e.f. 9.5.1989 instead of 15.1.1989 in terms of PHQs instructions dated 8.1.1990. It was also found that due to wrong date of confirmation, the applicants got undue benefit in promotion list C (Executive) and promoted as Head Constable (Executive).
3. The respondents after noticing the aforesaid error issued separate orders dated 13.4.1990 in respect of 2nd applicant, dated 15.5.2009 in respect of 3rd applicant and dated 18.5.2009 in the case of 1st applicant thereby correcting the confirmation date of the applicants and declared them confirmed in the rank of Constable (Executive) w.e.f. 9.5.1989 instead of 15.1.1989. Since the seniority has to be reckoned from the date of confirmation and as the date of confirmation of the applicants was changed, they could not have been admitted to the promotion list C, as they do not fall under the zone of consideration. As such, a show cause notice was issued to them as to why the promotion order to the rank of Head Constable issued w.e.f. 1.1.2009 should not be cancelled based upon their confirmation as on 9.5.1989. The applicants were also given the opportunity to file the reply within a period of 15 days from the date of receipt of the notice. The applicants have placed on record the show cause notice dated 19.5.2009 as Annexure A collectively.
4. The applicants filed their reply to the show cause notice and ultimately vide the impugned orders dated 20.7.2009, 21.7.2009 and 23.7.2009 (Annexure B collectively), the applicants were reverted to the post of Constable (Executive). It is these orders, which are under challenge in this OA.
5. Challenge has been made on the ground that reversion of the applicants without holding the inquiry is illegal and unconstitutional and also violative of Article 311 (2) of the Constitution of India. The applicants have contended that provisions of FR 31-A could not have been invoked in the instant OA, as there was no factual error regarding the promotion of the applicants.
6. Notice of this application was given to the respondents. The respondents have filed their reply. Facts, as stated above, have not been disputed. The respondents have justified their action on the basis of reasoning given in the impugned orders. The specific stand taken by the respondents in the reply is that the applicants could not have been confirmed w.e.f. 15.1.1989 inasmuch as earlier the confirmation has to be made strictly on the basis of seniority and availability of vacancies but subsequently the amendment was carried out in the Delhi Police (Promotion and Confirmation) Rules, 1980 vide notification dated 9.5.1989 whereby confirmation has to be made only in the service of an official which shall be in the entry grade and the confirmation is de-linked from the availability of permanent vacancy in the grade. In other words, an officer who has successfully completed the period of probation may be considered for confirmation.
7. The respondents have further stated that in the light of the amendment carried in the Rules, instructions dated 8.1.1990 were issued whereby it was stipulated that such Constables, who were recruited between the period from 9.2.1983 to 8.5.1987, may be declared confirmed w.e.f. 9.5.1989. Since the applicants were recruited on 15.1.1987 as such they could not have been confirmed prior to 9.5.1989 in terms of order dated 8.1.1990. According to the respondents, the applicants were confirmed ignoring the said order. As such, when this defect came to the notice of the authorities their date of confirmation was changed w.e.f. 9.5.1989 in the light of the order dated 8.1.1990. Thus, according to the respondents, once the date of conformation of the applicants has been changed from 15.1.1989 to 9.5.1989, they could not have been granted promotion as Head Constable, as they were not within the zone of consideration, as such they were rightly reverted to the substantive post of Constable after issuing the show cause notice and considering their reply. Thus, according to the respondents, there is no infirmity in the action taken by them.
8. According to the respondents, the provisions of Article 311 (2) of the Constitution are not attracted in this case, as the order of reversion has not been passed by way of punishment, rather the applicants, who were wrongly promoted, have been reverted to their substantive post in accordance with the provisions of the relevant rules.
9. The applicants have also filed the rejoinder thereby reiterating the contentions made by them in the OA.
10. We have carefully considered the contentions of the parties and perused the material placed on record.
11. It is not in dispute that the date of confirmation was the relevant consideration for the purpose of determination of seniority in the cadre of Constable at the relevant point of time. It is also not in dispute that ordinarily a person has to be confirmed on a substantive post after completing the period of probation. Further it cannot be disputed that the applicants were confirmed as Constable vide the order dated 16.7.1990 in the case of 3rd applicant and vide order dated 13.5.1994 in cases of 1st and 2nd applicants though retrospectively w.e.f. 15.1.1989. At that time the order dated 8.1.1990 was in force, which stipulates that the Constables recruited between the period from 9.2.1983 to 8.5.1987 may be declared confirmed w.e.f. 9.5.1989. At this stage, it will be useful to quote the order dated 8.1.1990, which deals with the confirmation of the Constables (Executive) and thus reads:
2. The Constables recruited between the period from 9.2.83 to 8.5.87, may be declared confirmed with effect from 9.5.1989, in accordance with the Delhi Police (Promotion & Confirmation) (Amendment) Rules, 1989, copy sent to all concerned vide this Hdqrs. endst. No.26105-115/CB-IV dated 30.6.89. Besides, the Constables recruited on or after 9.5.87, may be considered for confirmation after completion of their two years probation period successfully, at your end, in accordance with the above circular and rules. However, they may not be declared confirm in any case on or before 9.5.89. For instance, if a Constable was appointed on 10.5.87, his probation period will be completed on 9.5.89. For instance, if a Constable was appointed on 10.5.87, his probation period will be completed on 9.5.89 and he can be considered for confirmation with effect from 10.5.89.
12. Thus, on the face of the aforesaid order dated 8.1.1990, it was not permissible for the appropriate authorities to confirm the applicants retrospectively by passing a subsequent order of confirmation dated 16.7.1990 in the case of 3rd applicant and vide order dated 13.5.1994 in cases of 1st and 2nd applicants though retrospectively w.e.f. 15.1.1989. The applicants have not challenged the validity of the order dated 8.1.1990 in this OA, as such we are of the view that the applicants, who have been recruited as Constable (Executive) on 15.1.1987, i.e., between the period from 9.2.1983 to 8.5.1987 could not have been confirmed w.e.f. 15.1.1989 in terms of the order dated 8.1.1990 and they could have been confirmed only w.e.f. 9.5.1989. As such rectifying the date of confirmation of the applicants w.e.f. 9.5.1989 cannot be found fault with.
13. The factum of confirming the applicants from retrospective date came to the notice of the affected parties only when the applicants were granted promotion based upon such date of confirmation. Thus, according to us, it was permissible for the respondents to cancel the order of promotion of the applicants in terms of the Government of Indias decision No.2 below FR 31-A, which is in the following terms:
The Govt. of Indias decision No.2 below FR 31-A, stipulates that the orders of notification of promotion of Govt. servant be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the Govt. servant concerned should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect order or promotion or appointment.
14. It may be stated that the order of promotion of the applicants were cancelled only after giving a show cause notice and the contention raised by the learned counsel for the applicants that the applicants should have been reverted after following the procedure, as contemplated under Article 311 (2) of the Constitution, is wholly misconceived. Article 311 (2) is applicable where a person is reduced in rank or removed from service on account of misconduct. Here, the applicants have been reverted from the higher post, as they were wrongly promoted based upon their date of confirmation and when this defect came to the notice of the authorities, the applicants were reverted after issuing a show cause notice and considering their reply. Thus, we see no infirmity in the action of the respondents. As already stated above, the applicants have not challenged the validity of order dated 8.1.1990, which stipulates that Constables recruited between the period from 9.2.1983 to 8.5.19987 may be declared confirmed w.e.f. 9.5.1989, as such whether the date of confirmation was rectified by the respondents suo moto vide the order dated 8.5.2009 is of no consequence so long as the challenge is made to the order dated 8.1.1990.
15. In the result, for the foregoing reasons, OA is bereft of merit and is accordingly dismissed with no order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/