Central Administrative Tribunal - Delhi
Kailash Singh Bisht vs Comm. Of Police on 19 September, 2023
1 OA No. 1860/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1860/2015
Order reserved on: 09.08.2023
Order pronounced on: 19.09.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Kailash Singh Bisht
No. D-725 (PIS No.16970145)
Age 40 years
Designation: Inspector (Group-B),
Posting at: Special Cell Lodhi colony,
S/o Sh. H.S.Bisht,
R/o 624, Patrakar Vihar,
Niyay Khand-I, Indrapuram,
Ghaziabad, U.P.
....Applicant
(By Advocate: Mr. Y.P.Singh)
Versus
1. Govt. of NCT of Delhi,
Through Chief Secretary,
Players Building,
I.P.Estate, New Delhi.
2. Commissioner of Police,
Through Jt. Commissioner of Police,
Police Headquarters,
I.P.Estate, New Delhi.
... Respondents
(By Advocate: Mr. Amit Yadav)
2 OA No. 1860/2015
ORDER
By Hon'ble Manish Garg, Member (J) Through the medium of this Original Application (OA) filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"i. Set aside the impugned order dated 30.3.2015 (Annexure-A) passed by Respondents;
ii. grant the seniority to the Applicant w.e.f. 28.4.2006 with consequential relief till date entitling him on the basis of judicial precedent elaborated in the present OA;. iii. pass any order/relief/direction(s) may deem fit and proper in the interest of justice in favour of the applicant."
2. In order to substantiate the arguments, the learned counsel appearing for the applicant draws reference to his written submissions, inter alia, submitting as follows:
2.1 The applicant was granted Out of Turn Promotion (OTP) w.e.f. 08.05.2007. The respondents vide order dated 24.01.2014 granted OTP to Sh. Umesh Bharthwal from 15.12.2006 despite the fact that the date of gallant act, date of approval of Incentive Committee and the date of promotion of team member of applicant was prior in time to the said date of Shri Umesh Bharthwal. 2.2 The applicant, being aggrieved, immediately made representation on 03.02.2014. When the said representation was not decided, he filed OA No.752/2015. The said OA was disposed of with direction to decide the representation dated 03.02.2014. 3 OA No. 1860/2015
Vide impugned order dated 30.03.2015 the respondents rejected the representation of the applicant on two premises i.e., (i) delay and laches (ii) OTP to Sh. Umesh Bharthwal was granted on Court‟s directions.
2.3 The applicant being further aggrieved approached this Tribunal by way of present OA. In the said OA, the respondents took another plea that there were no vacancies in OTP quota in the year 2006. The said OA was dismissed by this Tribunal vide judgment dated 06.04.2017. The applicant being aggrieved filed WP (C) No.8976/2017 before Hon‟ble High Court of Delhi. The Hon‟ble High Court vide order dated 13.11.2018 set aside the Tribunal‟s Order dated 06.04.2017 and remanded the case back to this Tribunal for reconsideration.
2.4 Thereafter, applicant received information under RTI Act that there were 11 vacancies in the year 2006 and respondents had promoted only 4 persons to the rank of Inspector (Exe.) in OTP quota. It further transpired that total 221 SIs (Exe.) were promoted in the rank of Inspector (Exe.) on regular basis. Vide Notification dated 5.6.2006, 221 SIs (Exe.) were admitted to promotion List „F‟ with immediate effect. As per simple calculation, 5% of 221 vacancies come to 11 vacancies. The submission of the respondents that there were only 4 vacancies in OTP quota in the year 2006 is incorrect and contrary to what they have provided under RTI Act. As per the information received 4 OA No. 1860/2015 under RTI Act, respondents have granted OTP to 9 SIs in the year 2006 and out of said 9 SIs, one SI was granted OTP against the vacancy of 1998 and 4 SIs were granted OTP against the vacancy of 2005. Meaning thereby respondents have granted OTP to only 4 SIs against 11 vacancies. Had the respondents granted OTP to 11 SIs, then applicant would have been granted OTP in the year 2006 itself, as his case for OTP was approved by Competent Authority on 19.04.2006.
2.5 The applicant has also filed MA No.891/2019 to place on record additional facts and documents, which is pending adjudication.
2.6 Recently, this Tribunal allowed the Original Applications filed by similarly placed persons namely, Vivekanand Jha - OA No.1506/2016, Inspector Pawan Kumar - OA No.1122/2016 and Inspector Rahul Kumar Singh - OA No.1306/2016. In all these cases, respondents had taken similar objections i.e., (i) delay and laches (ii) OTP to Sh. Umesh Bharthwal was granted on Court‟s directions and (iii) vacancies not available. This Tribunal considered all the above contentions and thereafter allowed the aforesaid OAs.
2.7 In view of the above facts and circumstances, the applicant most respectfully prayed that this Court may graciously be pleased to allow the present OA.
5 OA No. 1860/2015
3. The learned counsel, appearing for the respondents also relied upon the averments made in the counter-affidavit, inter alia, contending that the applicant is not entitled to OTP in the facts and circumstances of this case. It has been contended by the learned counsel for the respondents that the background of this OTP to the applicant is that a Special Team comprising the applicant and Head Constable (HC) Udaibeer Singh and Constable (Ct.) Gulbeer Singh had gunned down a dreaded terrorist Saifullah belonging to Jash-e-Mohammad terrorist outfit in an encounter on 20.11.2005. A citation to this effect was sent by Deputy Commissioner of Police-Special Cell (SC) on 28.12.2005. The Citation of the Special Cell was considered by the Incentive Committee in its meeting held on 19.04.2006. The Incentive Committee recommended names of all these three police personnel for grant of OTP to the next higher rank for their act of gallantry. The recommendation of the Incentive Committee was also approved by the Delhi Police Commissioner. However, only Ct. Gulbeer Singh was granted OTP to the next higher rank of HC vide notification dated 28.04.2006.
3.1 HC Udabeer Singh approached this Tribunal in OA No.3404/2010 against delay in granting OTP to him. The said OA was disposed of vide order dated 08.03.2011 and in pursuance of which vide order dated 19.04.2011, he was granted OTP to the 6 OA No. 1860/2015 next higher rank of ASI (Exe.) in terms of Rule 19 (ii) of 1980 Rules with immediate effect.
3.2 The applicant was granted OTP from the post of Sub Inspector to Inspector w.e.f. 08.05.2007. He, however, has been seeking OTP w.e.f. 28.04.2006 when Ct. Gulbeer Singh was granted OTP.
3.3 In this regard, it is submitted that all the three police personnel, namely, the applicant, who was then SI; Udaibeer Singh, who was then HC; and Gulbeer Singh, who was then Ct., were recommended and approved for grant of OTP to the next higher rank of Inspector, Assistant Sub Inspector and HC respectively. Since a vacancy in the cadre of HC was immediately available, Ct. Gulbeer Singh was promoted as HC on 28.04.2006. When the vacancies were available in their respective grades, the other two police personnel were also promoted viz. Udabeer Singh was promoted as ASI w.e.f. 19.04.2011 and the applicant was promoted as Inspector w.e.f. 08.05.2007. The delay in grant of OTP was purely on account of non-availability of vacancies under 5% quota as stipulated under Rule 19 (ii) of 1980 Rules. 3.4 It is important to submit that the judgment of Hon‟ble High Court of Delhi in Umesh Barathwal (supra) is not applicable to the present case due to the facts of the case being different. The petitioner no.6 therein was not given promotion even though 7 OA No. 1860/2015 vacancy was available and, thus, the Hon‟ble High Court of Delhi ordered for grant of OTP to the petitioner notionally from the date of occurrence of the vacancy.
3.5 It is submitted that OTP promotions under Rule 19 (ii) of 1980 Rules are granted from the date of occurrence of vacancies in the relevant cadres. In the instant case, the vacancy in the grade of Inspector arose on 08.05.2007 and accordingly the applicant was granted ad hoc promotion to the rank of Inspector, under OTP, from that date and he was regularized in the said post w.e.f. 27.02.2008 according to his turn. It is also submitted that the case of Umesh Barthwal (supra) is completely different from that of the applicant herein. In Umesh Barthwal (supra), the Delhi Police did not grant the petitioner therein OTP to the rank of Inspector. Finally, with the judicial intervention of the Hon‟ble High Court of Delhi, he was granted promotion w.e.f. 15.12.2006, which is the date when his other team members were granted promotions under OTP. Whereas, in the instant case, as per the recommendations of the Incentive Committee, which was duly approved by the Delhi Police Commissioner, the applicant was granted OTP to the rank of Inspector when a vacancy had arisen in the said rank.
3.6 In support of his claim, the learned counsel for the respondents has relied on the following decisions: 8 OA No. 1860/2015
i) K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1967 SC
993.;
ii) Jagdish Narain Maltiar v. The State of Bihar, AIR 1973 SC 1343;
iii) CBSE v. B.R. Uppal, 129 (2006) DLT 660 (DB);
iv) Savitri Sahni v. Lt. Governor, NCT of Delhi, 130 (2006) DLT 287 (DB); and
v) Union of India v. Tarsem Singh, (2008) 8 SCC 648.
4. We heard the learned counsel for the parties and perused the pleadings on record and also gone through the written submissions submitted by learned counsel of both the parties, including the judgments relied upon by them.
5. For better appreciation of the facts, learned counsel for the applicant was directed to furnish certain information with regard to OTP given to Inspectors in Delhi Police for the year 2006 in a tabular form, which was filed by him and is reproduced as under:
Sl Rank Name & No. Date of ICM Date of Date of Date of No (Incentive approval by Promotion revised Committee CP promotion Meeting) and seniority
1. SI (Exe.) Akhileshwar, 27/01/2004 29/01/2004 02/01/2006 24.12.1998, D/884 vide Hq notification np.12077-
99/CB-
1/PHQ date
12.02.2014
in a different
case of the
year 1998.
Thus the
promotion
9 OA No. 1860/2015
order of
02.01.2006
in pursuant
27.01.2004
approval got
cancelled.
He was again
promoted in
a different
case of 1998.
2. SI (Exe.) Arvind Kr., 12, 15 & 27/04/2002 02/01/2006 He has given
D/2750 16/04/2002 seniority and
regularized
in the rank of
Inspector
from
7.12.2005
vide order
no. 22314-
413/CB-1/
PHQ dated
01/05/2018.
His OTP
order dated
02.01.2006
was
cancelled.
3. SI (Exe.) Arvind Kr., 13/10./.2004 21/10/2004 02.01.2006 He has given D/842 seniority and regularized in the rank of Inspector from 7.12.2005 vide order no. 22314- 413/CB-1/ PHQ dated 01/05/2018.
His OTP
order dated
02.01.2006
was
cancelled.
4. SI (Exe.) Ranbir 15/09/2004 16/09/2004 02.01.2006 He has given
Singh, seniority and
D/3443 regularized
in the rank of
Inspector
from
7.12.2005
vide order
no. 11879-
978/CB-
1/PHQ dated
12/03/2018.
His OTP
order dated
02.01.2006
was
cancelled.
5. SI (Ece.) Sanjay Dutt, 13/02/2001 13/02/2001 02.01.2006 He has given
D/2736 seniority and
regularized
in the rank of
Inspector
from
7.12.2005
vide order
no. 11879-
978/CB-
10 OA No. 1860/2015
1/PHQ dated
12/03/2018.
His OTP
order dated
02.01.2006
was
cancelled.
6. SI (Exe.) Jitender 25/10/2005 25/10/2005 30.03.2006
Singh,
D/3782
7. SI (Exe.) Rajpal 14/12/2005 14/12/2005 19.06.2006
Dabas,
D/882
8. SI (Exe.) Ved Prakash, 14/12/2005 14/12/2005 19.06.2006
D/3451
9. SI (Exe.) Raj Kr., 14/12/2005 14/12/2005 19.06.2006
D/3467
10. SI (Exe.) Pawan 14/12/2005 14/12/2005 08.05.2007 OA No.
Kumar 1122/2016
has been
allowed and
his seniority
fixed from
15/12/2006.
11. SI (Exe.) V.N.Jha 12/04/2006 12/04/2006 08.05.2007 OA
No.1506/201
6 has been
allowed and
his seniority
fixed from
15/12/2006.
12. SI (Exe.) Kailash 19/04/2006 19/04/2006 08.05.2007
Singh Bisht
13. SI (Exe.) Umesh 5/12/2006 15/12/2006 15/12/2006
Barthwal
6. As per the aforesaid chart, it is abundantly clear that Umesh Barthwal, Sl. No.13, who was the last candidate in the list, his date of approval by the CP was 15.12.2006 and promotion was granted to him on the same day, i.e., 15.12.2006 itself whereas name of applicant was at Sl. No.12 and his date of approval by CP was 19.04.2006 but promotion was granted to him on 08.05.2007. Based on the analogy of the above noted facts, it is highlighted that the case of the applicant is also similar in the line of the promotion/bravery act, keeping in view the fact that date of act of bravery of the applicant is 20.11.2005 the promotion was granted to him on 11 OA No. 1860/2015 08.05.2007. Umesh Barthwal, who was junior to the applicant had already been granted OTP on 15.12.2006 for the act of bravery on 06.03.2006. No divergent view can be taken by this Tribunal as the same has already been decided and settled by this Tribunal in various OAs, namely, Vivekanand Jha - OA No.1506/2016, Inspector Pawan Kumar
- OA No.1122/2016 and Inspector Rahul Kumar Singh - OA No.1306/2016. For better appreciation of above three OAs, we reproduce herein below the operative portion of OA No.1306/2016:
"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."
7. CONCLUSION:-
7.1 Having regard to the above directions of the Tribunal, the impugned Order dated 30.03.2015 is quashed and set aside. The applicant shall be entitled to grant of Out of Turn Promotion from 28.04.2006. Needless to say, the applicant shall be entitled to all consequential benefits on a notional basis w.e.f. 28.04.2006.12 OA No. 1860/2015
7.2 The respondents shall complete the aforesaid exercise within a period of eight weeks from the date of receipt of a certified copy of this Order. The OA is disposed of in the above terms.
8. No order as to costs.
(Manish Garg) (Tarun Shridhar) Member (J) Member (A) „SD‟