Central Administrative Tribunal - Delhi
Hc Udaibir Singh vs Gnct Of Delhi on 8 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3404 of 2010 New Delhi this the 8th day of March, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) HC Udaibir Singh, 599/SB (now 2140/DAP) PIS No.28861677 s/o late Shri Jaipal Singh, R/o H.No.88, Vasant Apartment, Vasant Vihar, New Delhi Group C aged 43 years, .... Applicant ( By Advocate Shri Sourabh Ahuja ) VERSUS 1. GNCT of Delhi, Through Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Delhi. 2. Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Additional Deputy Commissioner of Police, (Establishment), PHQ, IP Estate, MSO Building, New Delhi. .. Respondents ( By Advocate Ms. Sumedha Sharma ) O R D E R (ORAL) Dr. Dharam Paul Sharma, Member (J) :
The question in issue in the present case relates to grant of out of turn promotion to the applicant.
2. The applicant was initially appointed as Constable (Executive) in Delhi Police in 1986. He was promoted to the rank of Head Constable in May, 1997. In 2005, he was a member of a team headed by ACP Sanjeev Yadav which was deputed to Srinagar to apprehend one Jaish-e-Mohammad militant hailing from Pakistan stated to be hiding in Jawahar Nagar area of Srinagar, Jammu & Kashmir. The factual matrix of the case is that on 20.11.2005 at 9 p.m. team of special cell and SOG entered in the house No.198, Jawahar Nagar, Srinagar, J&K and cordoned the house. First of all the people living in the house were evacuated while the Pakistani terrorist who was later identified as Saifullah@ Kana r/o Balakot, Pakistan took position in the bathroom facing the main door, armed with AK 47 and hand grenades. The terrorist hurled hand grenades at the police party when they tried rescuing the inmates and to apprehend him. In the said operation, SI Kailash Bisht, Ct. Gulbeer Singh and the applicant herein are stated to have displayed exemplary gallantary act and extra ordinary good work that led to successful operation in which dreaded terrorist namely Saifullah @ Kana was killed. A case vide FIR No.105/2005 dated 20.11.2005 u/s 307/121/120B RPC and 25 Arms Act was registered at PS Raj Bagh, Srinagar, J&K in this regard. The DCP (Special Cell) concerned send the citation for out of turn promotion to the rank of ASI qua the applicant and his teammates i.e. SI Kailash Bisht and Constable Gulveer Singh to their respective next higher rank. This was considered by the Incentive Committee on 19.4.2006. The Incentive Committee recommended the name of the applicant and his teammates as referred to above for promotion on out of turn basis to their respective next higher rank. The recommendations of Incentive Committee were duly approved by the then Commissioner of Police. While Ct. Gulveer Singh was accorded out of turn promotion to the rank of Head Constable vide order dated 28.4.2006, a copy of which is at Annexure-5, the case of out of turn promotion of SI Kailash Bisht and the applicant could not be given effect to for the reason that there names appeared below the names of the police officers in the waiting list whose cases had already been recommended by the Incentive Committee earlier for out of turn promotion for exemplary extra ordinary gallantry. SI Kailash Bisht was given out of turn promotion in his own turn to the rank of Inspector vide order dated 8.5.2007, a copy of which is at Annexure A-6. The applicant was given to understand that he too would be given promotion to the rank of ASI as soon as vacancy under OTP quota is available. The applicant was surprised to receive a copy of the order dated 29.6.2010 whereby he has been informed that the Commissioner of Police has decided that all cases of out of turn promotion which were recommended by the Incentive Committee earlier and approved by the then Commissioner of Police but promotion could not be given in the absence of vacancy could be considered by the Incentive Committee afresh. Upon such consideration by the Incentive Committee at its meeting held on 21.12.2009, the Incentive Committee concluded, after considering all the documents pertaining to the case, that FIR and DD entry were silent and did not disclose exemplary courage and valor displayed by the applicant which would justify out of turn promotion to him. The Incentive Committee, therefore, concluded that the applicant does not deserve out of turn promotion under the Rules. Those recommendations of the Incentive Committee have been approved by the Commissioner of Police whereupon it has been directed that the applicant be informed accordingly. Feeling aggrieved, the applicant has filed the present Application challenging the correctness and legality of the order (Annexure-1) on the ground inter alia that the rules do not permit any review of the recommendations of the earlier Incentive Committee by subsequent Incentive Committee. The Commissioner of Police exceeded his jurisdiction in directing the Incentive Committee to consider the case of the applicant afresh. It has further been contended by the applicant that the applicant has been denied out of turn promotion in terms of the recommendations of the earlier Incentive Committee on wrong reporting of the vacancy position. He has obtained information under RTI Act which indicated that vacancies were indeed available for grant of out of turn promotion to the applicant yet he was denied the same on incorrect and erroneous premise that the vacancy was not available. The impugned action of the respondents is contrary to the rules and also offend the doctrine of legitimate expectations and likely to have adverse effect on the morale of the officers aspiring for out of turn promotion for exhibiting exemplary courage and gallantry at the risk of their life and safety and would go contrary to very basic foundation of the provisions providing for out of turn promotions. The applicant has accordingly prayed for quashing and setting aside of the impugned order dated 29.6.2010 and issuance of the directions to the respondents to promote him on out of turn basis to the rank of ASI w.e.f. 20.11.2005 with all consequential benefits.
3. The respondents have filed their reply controverting the applicants contentions. It has inter alia been stated that the applicant could not earlier be given promotion on account of non-availability of vacancy. Furthermore, on review both FIR and DD entry are found silent on exemplary courage and valor displayed by the applicant for which he could be given out of turn promotion. The DD entry only mentioned that the applicant along with staff had gone to Srinagar on the basis of special information regarding the presence of a Pak terrorist and to investigate the case FIR No.560/05/PS Sarojini Nagar which related to serial bomb blast on 29.10.2005. It further mentioned that when the Joint Team of Delhi Police & J&K Police asked the terrorist to surrender, he opened fire. In self defence, the joint police team also returned fire. From the Delhi Police Team, ACP fired 3 rounds, the applicant fired 2 rounds and Ct. Gulveer Singh fired 2 rounds each from their 9mm pistols and in the same incident Inspector Mohan Chand Sharma fired 9 rounds, Inspector Badrish Dutt fired 5 rounds, SI Sanjay Dutt fired 5 rounds, SI Rahul Kumar fired 6 rounds, SI Kailash fired 4 rounds and HC Ajit Singh fired 5 rounds from their official AK-47 rifles respectively. The Rules provide for out of turn promotion to those officers who have shown exceptional gallantry and devotion to duty. It has further been submitted that there is no prohibition against the review made by the Incentive Committee subsequently in terms of the directions of the Commissioner of Police. The Commissioner of Police is not bound by the orders of his predecessor and is competent to take decisions on his own in such cases.
4. At the hearing, the learned counsel for the applicant has drawn our attention to Annexure-8 of the Application which relates to information furnished to the applicants counsel under RTI Act, 2005. He has specifically drawn our attention to Annexure III of the information received by him under RTI Act, at page 63 of the paperbook, wherefrom it is clear that in 2007, there were total 391 vacancies in the rank of ASI, out of which vacancies for OTP quota, calculated at the rate of 5% came to 19 and as against this, only 4 vacancies were filled up. Thus there were 15 vacancies falling in OTP quota in the rank of ASI yet the applicant was denied out of turn promotion in spite of availability of vacancy. The same is the case in the year 2008, in which there were 130 vacancies in the rank of ASI, out of which 6 vacancies fell under OTP quota and as against this, only 2 vacancies were filled up, leaving four vacancies in which out of turn promotion could have been made and yet the applicant was denied due promotion under this category.
5. As to the powers of review, the learned counsel for the applicant relies upon the case of Umesh Barthwal vs Govt. of NCT of Delhi. In this case, a batch of OAs have been disposed of by a common order dated 1.6.2010, copy of which is at Annexure-11, wherein the issue of review of recommendations of the earlier Incentive Committee by a subsequent Incentive Committee was considered. This supports the case of the applicant. Such a review was not permissible under the rules. The learned counsel for the applicant further referred to the case of HC Sukhbir Singh vs. Govt. of NCT of Delhi and others in OA No.2304/2010 decided on 16.1.2011 wherein it has been inter alia held that orders of predecessor Commissioner have to be upheld and the same cannot be assailed by the successor and the Commissioner does not have any power vested him to order constituting the review of the Incentive Committee.
6. The learned counsel for the respondents has referred to the case of Commissioner of Police and Ors. vs. SI Satbir Singh in Writ Petition (Civil) No.10733/2009 decided on 9.8.2010. The para 5 of the order reads as follows:-
Firstly, the respondent is not claiming any right to be promoted under the notified Recruitment Rules. Secondly, the out of turn promotion being by way of a special benefit cannot be claimed as a matter of right. Thirdly, nobody can stake a claim to be promoted from a date when somebody has done good work justifying claim to be considered for out of term promotion. .. in the previous Original Application filed by the respondent, the Tribunal simply directed that his case for promotion be considered and never directed any consequential benefits to be given to the respondent. It has accordingly been urged that the applicant cannot claim out of turn promotion as a matter of right and even where it is given subsequently, the same would not be given from retrospective effect, i.e., from the year in which the officer concerned did exemplary work.
7. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case. It is an admitted position that out of three officers who were recommended for out of turn promotions in respect of same incident, two have already been granted out of turn promotions. The remaining one viz. the applicant herein has been denied out of turn promotion for the reason of non-availability of vacancy against which such a promotion quota could be made. The factual correctness of this reason/premise is open to question in view of the information furnished to the applicant under RTI Act, 2005 whereby 15 vacancies were stated to be available in the year 2007 in the rank of ASI and 4 in 2008 against which the applicants case could have been considered for grant of out of turn promotion pursuant to the recommendations made by the Incentive Committee on the citation of the DCP concerned and the same having been duly approved by the then Commissioner of Police. Had the applicant been promoted at the time, there would have been no occasion for any review by the subsequent Committee.
8. Insofar as the issue relating to review is concerned, the question is no longer res integra. Reference in this regard may be made to paras 24 and 25 of the order in SI Umesh Barthwal vs. Govt. of NCT of Delhi decided on 1.6.2010 (OA No.3681/2009 and connected cases):-
24. We also find that whereas the Tribunal directed consideration of representations of applicants for out of turn promotion, there is no direction to disturb the earlier finding by the incentive committee to come to a contrary view on reviewing the earlier decision of the Police Commissioner, which is an act of coram non judis by the respondents, being administrative or quasi-judicial authorities. Their decision-making process being against the rules vitiates the orders.
Resultantly, for the foregoing reasons, OAs are allowed to the extent that impugned orders are set aside. Respondents are directed to consider applicants for out of turn promotion to the rank of Inspector (Executive) and Assistant Sub Inspector (Executive) respectively, as per the ranks held by them in the feeder category on the basis of the recommendations of the earlier incentive committee and approval of the Commissioner of Police. However, on promotion the same would be prospective in effect. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs.
9. The above order is stated to have been appealed against by the respondents in Delhi High Court in Writ Petition (Civil) No.5444/2010 but the same has been dismissed vide order dated 10.12.2010.
10. For parity of reasons, the applicant herein is entitled to the same benefit as has been granted in the case of Umesh Barthwal case (supra).
11. Although it may not be necessary for us to go into the propriety of the finding and consequent recommendations of the second Incentive Committee, nonetheless, it may be appropriate to do so in cases where the recommendations are based on non-consideration of relevant material. It may not be out of context to note in this regard that consideration and recommendation of the subsequent Incentive Committee was based on contents of FIR and DD entry which by their very nature may not be an appropriate place to reflect the gallantry act and exhibit exceptional courage warranting consideration for out of turn promotion. The relevant documents in this regard would be the testimony given by the authority concerned recommending for out of turn promotion that is to say citation for out of turn promotion, copy of which is at Annexure-3 of the Application. It may be relevant to note in this regard as to what citation is stated with regard to the applicant herein as follows:-
HC Udaibeer No.2140/DAP: He was the active member of the police team from the very beginning. He worked for months in the area of Mehrauli and identified the places where the militants who attacked Ram janam Bhoomi-Babri Masjid stayed. HC Udaibeer banking on his extraordinary zeal and enthusiasm activated his contacts and informers. He worked day and night with his contracts and ultimately could pin point the places where militants had stayed.
HC Udaibeer took initiatives and continued to find out more about the militants. He mingled in the area under disguise and found out that one of the militant who led the attack on Ram janam Bhoomi-Babri Masjid disguised himself as vegetable seller by roaming around in the area and sellng vegetables on cart. He also found out that there ws on militant who masterminded this whole attack used to sell carpets etc. in the area.
HC Udaibeer developed deep knowledge of the area and cultivated such contacts, which played pivotal role in whole operation. It was his sustained efforts under adverse conditions that he also found out the place from where the mobile and SIM cards were purchased by the militants.
On 20.11.2005. HC Udaibeer was again given the most difficult task of finding out whether militant is in the house No.198, Jawahar Nagar, Srinagar, J&K or not. This was the crucial and deciding factor of the operation on 20th November 2005. HC Udaibeer under the cover of darkness recceed the area and went very close to the house from where he could see the people inside the house and at times overhear their conversation.
HC Udaibeer after some time informed that there were at least 4 male members in the house including one female. He also informed the most crucial information that all of them were talking in Kashmiri except one person who did not look like a Kashmiri and spoke Urdu. HC Udaibeer also informed that the person speaking Urdu had Pakistani accent. This was what the police team required.
During the shootout HC Udaibeer bravely confronted the militant on 20.11.2005. The militant lobbed hand grenades towards the police party and one of which exploded very near to him. However unfazed he continued his tirade against the militants and fired 2 rounds from his 9 mm pistol.
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HC Udaibeer joined Delhi Police on 1986. He was promoted to the rank of Head Constable in May 1997. He has earned great reputation in the department by doing continuous good work and there is nothing adverse against him. He has an unblemished record during his service tenure of 20 years. During his service period, he has earned 2 Commendation Rolls, 5 Commendation Certificate, 61 Commendation Cards and total cash reward of Rs.11,260/-.
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SI Kailash Bisht, HC Udaibeer and Const. Gulbeer have a track record of doing continuous good work since they joined Delhi police. They have exhibited highest degree of self-motivation and professionalism not only in this operation but also through out their police career. Whatever they have done in the line of their duty for Delhi Police is something which DeTheir previous records speak itself about their skill and devotion to their duties (Annexure B, C, D, E, F & G respectively). SI Kailash Bisht is capable of holding the higher rank of Inspector, as he possesses excellent investigative skill, understating and operational capabilities far beyond that of a Sub-Inspector. HC Udaibeer and Const. Gulbeer have also set an example of gallant act, dedication towards their duty, bravery and brilliant work which is more than what is expected from their respective rank of Head Constable and Constable and very much deserve to be promoted to the next higher rank of Assistant Sub Inspector and Head Constable.
Keeping in view the above mentioned facts and circumstances, I strongly recommend that SI Kailash Bisht, HC Udaibeer and Const. Gulbeer, all of whom have exhibited excellent individual and team performance under adverse and unfriendly conditions without even caring for their lives, courageously faced the desperados, but also saved the lives of their fellow team members and public persons through continuous extraordinary and excellent work done by them in the line of their duty.
12. Subsequent Incentive Committee thus apparently erred in not taking into consideration the aforesaid citation and confining its consideration to FIR and DD entry only.
13. In the facts and circumstances of the case and for the parity of reasons, this OA is allowed in terms of the order in Umesh Barthwal case (supra) to the extent that the impugned order dated 29.6.2010 as at Annexure-1 is quashed and set aside and the respondents are directed to consider the applicants case for out of turn promotion on the basis of the recommendations of the earlier Incentive Committee. Upon such consideration if the applicant is entitled for grant of promotion the same would be prospective in effect. This exercise shall be completed within two months from the date of receipt of a certified copy of this order. No order as to cost.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
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