Central Administrative Tribunal - Delhi
Rakesh Kumar vs G.N.C.T. Of Delhi on 2 December, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 0059/2010
with
OA No. 2334/2009,
OA No. 2810/2008
and
CP No. 0044/2009
MA No.0129/2009
MA No.0167/2009
in
OA No.2810/2008
New Delhi this the 2nd day of December, 2011.
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. M.L. Chauhan, Member (J)
Honble Mr. Ramesh Chandra Panda, Member (A)
1. OA 59/2010
1. Rakesh Kumar,
S/o Sh. Jagdish Chander,
R/o Flat No. 5, Type-III,
Police Station, Kirti Nagar,
Delhi.
2. Pawan Dixit,
S/o Late Shri Balwan Singh,
R/o C-12, Type-III,
Police Colony, Rajauri Garden,
Delhi.
3. Anand Yadav,
S/o late Sh. A.K. Yaday,
R/o B-297, Chhatarpur Enclave,
Phase-II, Mehrauli, Delhi.
4. Ashish Kumar
S/o Rajender Parsad,
R/o 89, Madangir Village,
Delhi-62.
5. Manoj Kumar
S/o late Shri Sohan Lal,
R/o RZ-25-D/3A, Street No.32,
Indira Park, Palam Colony,
Delhi.
6. Parveen Ahlawat,
S/o Shri S.S. Ahlawat,
R/o Flat No. 216, Pocket-A/3,
Sector-8, Rohini,
Delhi.
7. Satinder Singh
S/o late Sh. Ishwar Singh,
R/o 11/14, Rajiv Enclave,
Sector-5, Rohini,
Delhi. Applicants
Versus
1. G.N.C.T. of Delhi,
Through Lt. Governor/
Administrator Delhi,
Raj Niwas, Civil Lines,
Delhi-110054.
2. Commissioner of Police, Delhi,
Delhi Police Headquarter, MSO Building,
I.P. Estate, I.T.O.,
New Delhi-110002. Respondents
2. O.A. 2334/2009
1. Sh. Mangesh Tyagi
S/o Sh. Baij Nath Tyagi,
R/o 1/4707-F, Gali No. 4-B,
Balbir Nagar Extn.,
Shahdara, Delhi.
2. Sh. Parveen Kumar
S/o Sh. Sursh Chand
R/o V.P.O. 156, Barwala,
Delhi-39.
3. Sh. Sanjeev Kumar,
S/o Late Sh. Mahender Singh,
R/o J-144, Ground Floor,
Saket, New Delhi-17.
4. Sh. Surender Kumar,
S/o Rishal Singh,
R/o 6223, C-6, Vasant Kunj,
New Delhi.
5. Sh. Manoj Kumar Sharma,
S/o Sh. Murari Lal Sharma,
R/o C-2, Type-III,
P.S. Vivek Vihar, Delhi. Applicants
Versus
1. Commissioner of Police,
PHQ, MSO Building,
I.P. Estate, New Delhi.
2. The Lt. Governor,
Raj Niwas, Delhi.
(By Advocate Shri B.N.P. Pathak)
3. O.A. 2810/2008
Mahavir Prasad,
Sub-Inspector (Exe.)
D-3364,
Police Station Sarojini Nagar,
PIS No. 16940094,
New Delhi. Applicant
Versus
1. Union of India,
Through Commissioner of Police,
Police Headquarters,
I.P. Estate, New Delhi-110 001.
2. Dy. Commissioner of Police,
Police Headquarter-I, MSO Building,
I.P. Estate, New Delhi-110 001.
3. Lt. Governor of Govt. of NCT of Delhi,
Raj Niwas, through Chief Secretary,
Govt. of NCT Delhi,
Delhi. ..Respondents.
4. C.P. 44/2009
Mahavir Prasad,
Sub-Inspector (Exe.)
D-3364,
Police Station Sarojini Nagar,
PIS No. 16940094,
New Delhi. Applicant.
(By Advocate Shri Susheel Sharma)
Versus
1. Shri Y.S. Dadwal,
Commissioner of Police,
Police Headquarters,
i.P. Estate, New Delhi-110001.
2. Shri M.H. Meena,
Dy. Commissioner of Police,
Police Headquarter-1, MSO Building,
I.P. Estate, New Delhi-110001.
3. Lt. Governor, NCT Delhi through
Chief Secretary
Shri Rakesh Mehta,
Govt. of NCT of Delhi
Delhi Secretariat,
I.P. Estate, New Delhi-110002. Respondents
Memo of Appearances:
For the Applicants: Ms. Jyoti Singh, Senior Advocate with Shri Y.S. Chauhan and Shri Susheel Sharma, Advocate.
Ms. Bimla Devi, proxy for Mrs. Jyotsana Kaushik, Advocate in OA-2334/2009
For the respondents: Mrs. Avnish Ahlawat, Mr. Nitesh Kumar Singh and Shri B.N.P. Pathak, Advocates
ORDER
Mr. M.L. Chauhan, Member (J):
In view of the decision rendered by the Coordinate Bench in OA-683/2000 S.I. Sharat Kohli & Another v. Union of India & others, decided on 18.01.2002, a Division bench consisting of Honble Mr. G. George Paracken, Member (J) and Honble Dr. (Mrs.) Veena Chhotray, Member (A), has referred the following questions for consideration by a Full Bench:
(1) For revisiting the order of the co-ordinate Bench in OA 683/2000 SI Sharat Kohli & Anr. Vs. Union of India & Ors. on the various grounds discussed in this order. These, inter alia, include non-consideration of aspects like apparent arbitrariness, scope for extraneous consideration and discrimination. (2) The issue of legal sustainability of the amended provisions of Rule 22 of Delhi Police (Appointment and Recruitment) Rules, 1980 read with S.O. No.291/95 as arbitrary and violative of Article 14 of the Constitution.
2. Before considering the aforesaid questions, it may be relevant to refer to the policy of the Government regarding the basic Institutional Training for direct recruits and the view expressed by this Tribunal in the case of S.I. Sharat Kohli (supra), the provision of Rule 22 of Delhi Police (Appointment & Recruitment) Rules, 1980 (hereinafter referred to as 1980 Rules) and also S.O. No.291/95 to the extent marks obtained by direct recruitment Sub Inspector (Executive) in the final examination held at Police Training School/College along with the marks obtained by them in the examination held by the Staff Selection Commission (SSC) has been taken into consideration for the purpose of determination of the inter-se-seniority.
3. The case set up by the applicants in these OAs is that seniority should be determined on the basis of the marks obtained in the order of merit recommended by the SSC for appointment and Rule 22 of the 1980 Rules along with Standing Order No.291/1995 to the extent they prescribe counting of marks obtained in the training for the purpose of determination of the inter-se-seniority of Sub Inspector (Executive) be quashed.
4. In order to appreciate the aforesaid controversy, we may refer to the un-amended Rule 22 of the 1980 Rules, which thus reads:
Seniority in the case of upper and lower subordinate shall be initially reckoned from the date of first appointment, and officer of subordinate rank promoted from a lower rank being considered senior, to persons appointed direct to the same rank on the same day, till seniority is finally settled by confirmation. The seniority of direct recruits in all ranks except Sub-Inspectors (Ex.) appointed as a result of some examination or selection shall be reckoned by the order of merit determined by the Selection Board and in case no order of merit is indicated by the age of candidates, the oldest being placed senior-most and the youngest the junior-most. The inter-seniority of directly recruited Sub-Inspectors (Ex.) shall be fixed, on the basis of total of marks obtained by them in the Staff Selection Commission Examination/Interview as well as in the final examination held at Police Training School/College.
5. It may be relevant to submit here that the aforesaid un-amended Rule was further amended vide Notification No.F.13/21/2002/Home (P) Estt/2201-04 dated 07.05.2003, pursuant to the decision rendered by this Tribunal in OA No.1159/99 Mukesh Tyagi & Anr. V. Lt. Governor, Delhi, decided on 09.05.2001 and another decision of the Coordinate Bench of this Tribunal in Mohan Lal v. Delhi Administration (OA No.1046/88), which decision was based upon the law laid down by the Constitution Bench of the Apex Court in the case of Direct Recruit Class-II Engg. Officers Association & Ors. v. State of Maharashtra and Ors., (AIR 1990 SC 1607), whereby this Tribunal has held that seniority list based on the date of confirmation is untenable. This led to amendment in the 1980 rules and the words till the seniority is finally settled by confirmation were deleted from the un-amended Rules. At this stage it will be useful to quote the amended Rule 22, as notified vide Notification dated 7.5.2003, which thus reads:
Seniority in the rank of upper and lower subordinate shall be initially reckoned from the date of first appointment, and officer of subordinate rank promoted from a lower rank being considered senior to persons appointed direct to the same rank on the same day. The seniority of direct recruits in all ranks except Sub-Inspectors (Executive) appointed as a result of some examination or selection shall be reckoned by the order of merit determined by the Selection Board and in case no order of merit is indicted by the age of candidates, the oldest being placed senior-most and the youngest the junior-most. The inter-seniority of directly recruited Sub-Inspectors (Ex.) shall be fixed, on the basis of total marks obtained by them in the Staff Selection Commission Examination/Interview as well as in the final examination held at Police training School/College. (emphasis supplied)
6. As already stated above, the grievance of the applicants is regarding the last part of the order, whereby inter-se-seniority of direct recruit Sub Inspectors (Executive) has to be determined/fixed, on the basis of the total marks obtained by them in SSC examination as well as in the final examination held at PTS/PTC. In order to give effect to the aforesaid statutory rules, respondents have also issued a standing order No.291/1995 (Annexure A-2) regulating the functions of the basic training school of probationary Sub Inspectors of Delhi Police. Para-14 of the said standing order deals with fixation of inter-se-seniority. At this stage, it will be useful to quota para-14 of the said standing order, which deals with fixation of inter-se-seniority and reads thus:
14. FIXATION OF INTER-SE-SENIORITY The inter-se-Seniority of Sub-Inspectors (Probationers)/ WASIs at the Passing Out Parade shall be fixed at the end of their overall 24 months training at the Police Training School. The Merit List prepared at the PTS on the basis of marks obtained by them in the final examination of various syllabus in their professional training during the Integrated Semester occurred along with the marks obtained by them in the Entrance Examination conducted by the SSC, shall be combined at the PHQ and the final list thus prepared at PHQ shall form the basis of their inter-se-seniority in the batch. Those who fail to complete the Basic PTS Training Programmes successfully for any reason, and in case they are allowed to again undergo the training in the next batch, their seniority shall be fixed in their next batch only.
7. It is the validity of these statutory rules as well as para-14 of the aforesaid Standing Order, which is under challenge before this Tribunal. As can be seen from Standing Order No.291/1995 (Annexure A-2) total 3200 marks for different subjects and aspects have been earmarked for two years training period in PTS as well as in District. According to the said standing order the final merit list of the successful candidate is prepared on the basis of the marks obtained by them in the final examination of various syllabus in their professional training during the Integrated Semester course along with the marks obtained by them in their Entrance Examination conducted by the SSC which shall be combined at PHQ and the final list thus prepared at PHQ shall form the basis of their inter-se-seniority in the batch. Further, as can be seen from the aforesaid Standing Order, 1300 marks have been earmarked for indoor training, 1100 marks for outdoor training, 400 marks for monitoring of performance during part A, B, C & D field training and 400 marks in the form of assessment to be given by the DCP/Addl. DCP and other officers. The main grievance of the applicants is that prescribing 3200 marks for two years training is highly excessive, as compared to the 700 marks earmarked for SSC examination, more particularly allotment of 400 marks for monitoring of performance during part A, B, C and D field training and 400 marks for internal assessment, which has resulted in favoritism and manipulation and assigning higher merit to some of the candidates. During the course of arguments learned counsel of applicants has also placed on record subsequent standing orders No.291/2008, 291/2009 and 291/2010 to show that the weightage of monitoring of performance during part A, B, C and D field training and internal assessment has been dispensed with and the marks obtained in the indoor training and outdoor training are only taken into consideration while preparing the merit at the end of the overall 24 months training at PTS. Thus, according to the learned counsel of applicants the aforesaid discretionary marks which has to be awarded by the functionaries of PTS/PTS, which may be misused while determining the merit list at the end of the training, has been dispensed with by the respondents themselves in their subsequent policy decision, which would show that respondents themselves realized that this could result in frustration. Thus, on this ground alone SO No.291/1995 is required to be quashed and set aside.
8. It is further argued that if the training marks are to be considered necessary for determination of inter-se-seniority then it ought to be applied for all ranks of subordinate in Delhi Police, such as Constable, Head Constable and ASI who also undergo training at PTS/PTC at the time of induction as well as when being considered for promotion to next higher rank.
9. We may now consider the issues, as referred by the referring Bench in the light of the aforesaid factual background and contentions raised by the learned counsel for the applicants.
10. We have already extracted Rule 22 of the Delhi Police (Appointment & Recruitment) (Amendment) Rules, 2003 in the earlier part of the judgment. The later part of this Rule specifically stipulates that the inter-se-seniority of directly recruited SI (Executive) shall be fixed on the basis of the total marks obtained by them in the SSC Examination/Interview as well as in the final examination held at PTS/PTC. To the similar effect is para-14 of the SO-291/95 with further stipulation that those who fail to complete the basic PTS training programmes successfully for any reason, and in case they are allowed to again undergo the training in the next batch, their seniority shall be fixed in their next batch only. The aforesaid amended Rule 22 as well as para-14 of the Standing Order No.291/95 came for consideration before this Bench in Sharat Kohli (supra). In the said OA the applicants, inter alia, had sought a declaration to the effect that para-14 of the Standing Order No.291/95 as well as Rule 22 of the Delhi Police is ultra vires in law. The challenge on the said ground was negated by the Tribunal. At this stage, it will be useful to quote paras 8 to 10 of the judgment, which thus read:
8. The principle contained in aforesaid para 14 of the aforesaid standing order is that the final inter se seniority within the batch of directly recruited SIs (Ex.) will be determined by adding the marks which the candidates secure in the entrance exam. conducted by SSC with the marks which they secured at the end of their training period. This principle which is no doubt contained in Rule 22 is wholly severable from the other principle contained in Rule 22, namely that seniority would be settled by confirmation which the Bench struck down in its order dated 9.5.2001. Even if the Tribunal struck down Rule 22, it does not necessarily follow that para 14 of Standing Order No.291/95 which is unconnected with seniority being linked with confirmation, was also struck down.
9. Indeed DOPT in its letter dated 5.8.86 (copy taken on record) on the subject of recruitment through Civil Services Exams and training of the direct recruits with a view to make probationers training more effective, had suggested to all Ministries/departments of the Govt. of India to amend the recruitment rules to give weightage to the marks obtained during the institutional training along with the marks obtained in the competitive examination for determining the final seniority of direct recruits. This suggestion was made because the basic institutional training of direct recruits involves not the imparting inculcation of professional knowledge, skills and attitudes, but improvement in physical fitness, sharpening of reflexes and strengthening of discipline to unable them to discharge their duties and responsibilities efficiently and effectively in the public interest. This suggestion though made in the context of those who take the CSE, is equally applicable in the present context also. It is extremely important that the trainees take proper interest in the training imparted to them for which the authorities expend considerable resources and if the marks they obtain at the end of the training period were not make a factor to determine their interse seniority, it is likely that they may not take the desired degree of interest in their training, as a result of which they public interest would suffer. It is also for this reason that those who fall short of the prescribed attendance are not allowed to take the final exam with their colleagues and are required to undergo training again and take the exams with the next batch of trainees
10. During the course of hearing reliance was placed by applicants counsel on para 3 of DOPTs OM dated 4.11.92 which stated that seniority of a person regularly appointed to a post according to rule would be determined by the order of merit indicated at the time of initial appointment and not according to the date of his confirmation. From this it cannot be concluded that marks obtained during the institutional training cannot be added to the marks obtained in the competitive exam. to determine the final seniority of the direct recruits as set forth in DOPTs OM dated 5.8.86 and indeed in SO No.291/95. In fact DOPTs OM dated 4.11.92 was specifically on the subject of delinking seniority from confirmation, and cannot be construed in a manner so as to prevent respondents from including the marks obtained by direct recruits during the course of their institutional training as an input in determining their final inter-se-seniority.
11. Thus, as can be seen from the portion of that judgment, as quoted above, this Tribunal has not only upheld the validity of amended Rule 22 but also upheld determination of seniority of SIs (Ex.) in the light of provisions contained in para 14 of the standing order No.291/95. The referring Bench has not doubted the judgment of this Tribunal in the case of Sharat Kohli (supra) insofar imparting of the Institutional training for direct recruits is concerned. But as can be seen from para-20 of the order the referring Bench has observed that while initial training is essential and compulsory for all subordinate ranks recruited directly, the provision of counting of marks obtained in the final examination held at PTC/PTS for the purpose of seniority is made applicable only for the Sub Inspectors (Executive) and it is not followed for any other directly recruited subordinate rank police officers in Delhi Police. Another reason which weighed with the referring Bench to revisit the judgment of this Tribunal in Sharat Kohli (supra) was that Rule 22 of the 1980 Rules and the S.O. 291/95 violates the basic instructions issued by the Government of India, Department of Personnel in the matter of determining inter-se-seniority of direct recruits on the basis of merit in the qualifying examination in terms of OM dated 4.11.1992. Thus, according to the referring Bench Rule 22 ibid is in contravention of the existing general principles of fixation of seniority. The Bench was of the opinion that these aspects have not been considered in the earlier case.
12. What is the need of training and object sought to be achieved by such training has been emphasized by the Department of Personnel in its letter dated 5.8.1986, whereby it was suggested to all Ministries/Departments of the Govt. of India to amend the recruitment rules to give weightage to the marks obtained during the institutional training along with the marks obtained in the competitive examination for determining the final seniority of direct recruits. This suggestion was made because the basic institutional training of direct recruits involves not only the imparting inculcation of professional knowledge, skills and attitudes, but improvement in physical fitness, sharpening of reflexes and strengthening of discipline to enable them to discharge their duties and responsibilities efficiently and effectively in public interest. The need for such training and object sought to be achieved by such training has also been emphasized by the National Police Commission in its recommendations, as is evident from the standing orders No.291/08, 291/09 and 291/10. At this stage, it will be useful to quote relevant portion of the said Standing Order No.291/08, which thus reads:
The National Police Commission has assessed the training needs of a Sub-Inspector in the Civil Police. It has stated that the Sub-Inspector of police occupies the most important functional area in the police hierarchy. The law vests in him enormous powers like powers of arrest without warrant, release on bond or bail, search and seizure, carrying out inquests and summoning witnesses. In law and order situations, he has an arsenal of powers whose impact on the citizens fundamental and other rights is far reaching. He combines in himself the preventive, detective, and regulatory control functions of law enforcement and he himself investigates crime and other cases. He is the kingpin in the police administration at the cutting edge. He comes into continuous contact with the public and occupies the first level of supervision and leadership in the set up, over the Constables and Head Constables, who are most visible to the public eye. Much depends upon his capacity to get the active cooperation and assistance of the staff under his control and on his own professional competence.
The SI has to be professionally competent and keep the public and his superiors satisfied if he is to come up in service. This involves a thorough training not only in the legal side of his work but also in the practical side, like scientific aids and other skills in investigation, gathering of intelligence, adequate knowledge of forensic science, etc. In the area of law and order, he should be trained in crowd control, regulation of fairs and festivals, meetings and processions. He should also be trained to have the necessary understanding of the causes that result in communal, agrarian, labour, student and other areas of conflict. He is required not only to be prompt and effective in action, but discrete and tactful, considerate and compassionate. He should have faith in the preventive aspects of police work as well as the criminal justice system and be able to stand up to its exacting procedures.
So far, the basic training of Probationary Sub-Inspectors (PSIs) and Women Sub-Inspectors/Assistant Sub-Inspectors of Executive Cadre was being carried out under Standing Order No.291 of 1995. Thereafter, many amendments/additions were made in the standing order and since long a need was felt to comprehensively revise the standing order.
Certain additional Articles from the Constitution of India have been included with special reference to landmark decisions of the Honble Supreme Court with a view to inculcate jurisprudence and legal aptitude amongst the PSIs. Further, in Paper-I (Organization & Administration), a new chapter Government of National Capital Territory of Delhi has been incorporated. Paper-VII (Police Science-I) has also been suitably revised. In Paper-V (Constitution of India & Minor Acts), only important minor Acts, which are applied regularly in day-to-day policing, have been retained and deleted minor Acts have been included in Paper-VI (Law IV Minor Acts with Books) suitable additions and deletions have also been made wherever necessary.
Paper-X (Traffic Rules & Regulations) have been deleted and in place of it Paper X (Police Science IV Practical) has been introduced. This paper carries 100 marks in which a trainee shall be required to prepare complete charge sheet under simulated crime situations and making entries in all relevant registers kept at the Model Police Station created for the purpose. This will serve purpose of making them a complete Investigation officer and will be in addition to the practical attached with individual papers.
13. Thus, in view of what has been stated above, we are of the view that determination of the inter-se-seniority on the basis of the marks obtained in the training and the competitive examination is laudable one and no exception can be had to it. The grievance raised by the applicants on the premise that provision of counting of marks obtained in the final examination held at PTC/PTS together with marks obtained in SSC examination for the purpose of seniority is made applicable only for the Sub Inspectors (Executive) and it is not followed for any other directly recruited subordinate rank police officers in Delhi Police, as such, Rule 22 ibid as well as para-14 of SO-291/95 be quashed, being arbitrary, cannot be accepted for the reasons stated hereinafter.
14. As can be seen from the recommendation made by the National Police Commission, relevant portion of which has been reproduced above, it is clear that the guiding factor/basis for imparting training and awarding marks to the SI (Executive) is that the Sub Inspectors of Police occupies the most important functional position in the Police hierarchy/ organization and deals in law and order situation, matters relating to crimes and comes in continuous contact with the public and occupies first level of supervision and control over his subordinate officials, thus must be involved in a thorough training not only on legal side of work but also in the practical side like scientific aid, skills, adequate knowledge and forensic science etc. The applicants have failed to show how the SI (Ex.) associated with the duties of preventive, detective and regulatory control and discharge of the functions of law enforcement, investigation of crime etc. and those S.I. who perform other duties than dealing with law and order problem and dealing with public can be described as similarly circumstanced, thus offending the mandate of Article 14 of the Constitution of India. Suffice it to say that discrimination is the essence of classification and does violate the constitutional guarantee of equality only if it rests on an unreasonable basis. In order to establish that protection of the equal opportunity clause has been denied to them, it is not enough for the applicants to say that they have been treated differently from others, not even enough that a differential treatment has been accorded to them in comparison with other similarly situated. The guarantee of equality does not imply that the same rules should be made applicable to all persons in spite of differences in their circumstances and conditions. At this stage, it will be useful to refer to the decision of the Apex Court in the case of Ramesh Prasad v. State of Bihar and others, AIR 1978 SC 327, where the Apex Court has held as under:
10. The following observations made in State of Mysore v. P. Narasinga Rao (AIR 1968 SC 349) (supra) will also amply repay perusal (at p. 351):
"It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. There any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated. Articles 14 and 15 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 is only an instance of the application of the general rule of equality laid down in Art. 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16 (1) does not bar a reasonable classification of employees or reasonable tests for their selection."
15. Hence, the contention raised on the basis of discrimination that the marks of training along with marks obtained in qualifying examination has been made basis only in the case of SI (Executive) and not in the case of other SI and subordinate rank police officials is without any basis. We are of the firm view that classification is based on intelligible differentia, keeping in view the laudable object sought to be achieved, as noticed above. Further, we are of the view that the judgment rendered by this Tribunal in the case of Sharad Kohli (supra) whereby the challenge made to the amended provision of Rule 22 of the Delhi Police (Appointment & Recruitment) Rules, 1980 read with Standing Order No.291/95 was negated, is a good law and does not require any reconsideration.
16. Now let us consider the challenge made by the learned counsel of applicants based on excessive marks for PTS training as compared to SSC examination/interview and undue weightage of discretionary marks under the heading 400 marks for monitoring of performance during part A, B, C & D field training and 400 marks for internal assessment, which had vitiated the ultimate merit and formed basis for determination of the seniority in terms of the aforesaid rules and the SO No.291/95.
17. As regards the challenge to the excessive marks prescribed for training, as already stated above, we are of the view that the purpose of the training is laudable one and satisfies the test of reasonable classification and also falls within the realm of policy decision. If the rule-making authority or the Government has decided that professional training should be given much weightage than the marks obtained in SSC Examination, the rule/provision cannot be quashed on that ground. At this stage, we wish to reproduce the judgment of the Apex Court in the case of P.U. Joshi v. Accountant General, (2003) 2 SCC 632, wherein in para-10 the Court has made the following observations:
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
18. Thus the challenge of the applicants that the excessive marks as prescribed for PTS Training, as compared to the SSC Examination/Interview are arbitrary and on that ground seniority rule should be quashed is without any basis.
19. As regards the next challenge made by the applicants that prescribing of 400 marks of A, B, C & D field training and 400 for internal assessment has resulted in placing less meritorious candidates on higher position and simultaneously merit position of some of the meritorious candidates have been brought down, suffice it to say that the provision of Rule or Standing Order No.291/1995 cannot be quashed on this ground. In case the provision of the Rule or Standing Order has been implemented in an arbitrary manner or some favoritism has been shown to some of the candidates that can be challenged as an individual action. Therefore, one has to make distinction between the validity of the rules and misuse of the rules. In case of misuse of the rules that individual action can be challenged and it can be challenged on its merit but by that the whole scheme, which has been introduced for the laudable purpose, cannot be said to be bad. Even otherwise also, it cannot be said that awarding of 400 marks A, B, C and D field training and 400 marks for internal assessment is un-channeled and is about to be misused. As can be seen from paras 9 and 10 of the Standing Order No.291/95 (Annexure A-2) the marks for internal assessment is based on general conduct, attitude, skills developed, punctuality and aptitude for service etc. as observed individually by the respective assessing officers during the various training phase and principal of PTS has to make a confidential dossier of each training for that purpose. Similarly awarding of 400 marks is based upon monitoring of performance of the individual during A&B Courses (Semester 2) and C & D Course (Semester 4). Simply because awarding of marks under the heading monitoring of performance during A, B, C & D field training and 400 marks for internal assessment has been done away with in the subsequent standing orders (2008-2010) cannot be the basis to hold that the aforesaid rule or standing order should be quashed on that ground alone. Further, why change was made in subsequent Standing Orders has been explained in the subsequent Standing Orders, as certain additional Articles from the Constitution of India have been added. As already stated above, in case there is arbitrariness or some favoritism in awarding the marks under the aforesaid head to some candidates, may be a good ground to challenge the individual action, but certainly, as already stated above, rule and standing order cannot be quashed on that ground alone. It is open for the Government to change its earlier policy based upon the needs of the hour. Further, we are of the view that Rule 22 cannot be held arbitrary, as it is contrary to Department of Personnel and Training OM dated 4.11.1992, which stipulated that seniority of a person regularly appointed to a post according to Rules, would be determined by the order of merit indicated at the time of initial appointment and not according to the date of confirmation. This instruction was probably issued on the basis of declaration of law by the Constitution Bench in the case of Direct Recruits case (supra) whereby the Apex Court has held that where once an incumbent is appointed to the post according to rules, his seniority has to be counted from the date of his appointment and not from the date of his confirmation. Accordingly, Rule-22 ibid was amended. This aspect has also been noticed by this Tribunal in S.I. Sharat Kohlis case (supra). Further the executive instruction cannot override the provisions of statutory rules, unless it is shown that statutory rule has offended some provisions of the Constitution or the Rule is discriminatory or arbitrary. That being so, the executive instruction has to give way to the statutory rules and where the statutory rules prescribe that seniority has to be determined in a particular way, in that eventuality seniority has to be determined as prescribed under the rules and date of joining on the post is irrelevant. That is what the Apex Court has also held in the case of Pawan Pratap Singh v. Reevan Singh and others, 2011 (1) SLJ 454.
20. Thus, we answer both the references in negative and hold that Rule 22 of Delhi Police (Appointment & Recruitment) 1980, which has been amended and substituted by Delhi Police (Appointment and Recruitment) (Amendment) Rules, 2003 read with SO 291/95 is not arbitrary and violative of Article 14 of the Constitution of India and also that the decision rendered by this Tribunal in OA-683/2000 - Sharat Kohlis case (supra) is a good law.
21. We may now advert to the facts of the present case, as we are of the view that the matter can be disposed of instead of remitting the same to the Division Bench. We have already held that the aforesaid amended Rule 22 as well as standing order No.291/1995 is not violative of Article 14 of the Constitution of India. The respondents have prepared the seniority list based upon the aforesaid rule as well as standing order No.291/95 in the year 1998. Not only that applicants, who appeared in the Combined Graduate Level Examination, 1992, have been further promoted to the post of Inspector on 16.01.2009/27.01.2010. Applicants have challenged the validity of Rule 22 and standing order No.291/95 after a lapse of about 15-17 years from the date of their joining as Sub Inspectors as direct recruits. They have neither impleaded the persons who had been promoted to the posts of Inspector nor challenged their promotion orders. In the absence of any challenge made to the posts of Inspector validity of the said order cannot be gone into. In case the relief is granted to the applicants at this stage, it will not only adversely affect the persons whose seniority had been determined in accordance with the amended Rule 22 ibid as well as SO-291/1995, but will also those persons who had been promoted as S.I. based on such seniority. Thus, we are of the view that the applicants are not entitled to relief on the ground of delay and laches as well as on the ground of non-joinder of proper and necessary parties, especially when the validity of Rule 22 and S.O. No.291/95 has been upheld.
22. For the foregoing reasons, OAs are dismissed with no order as to the costs.
CP No.44/2009in OA No.2810/2008
23. This Contempt Petition has been filed by the applicant in OA No.2810/2008 for violation of ex-parte order dated 30.12.2008, whereby respondents were directed to forward the case of the applicant also to the DPC for due consideration for promotion to the post of Inspector as per the Rules and settled law and the result may be kept in a sealed cover, subject to the outcome of the OA. The grievance of the applicant is that despite the aforesaid direction given by this Tribunal respondents have held a DPC on 13.01.2009 in violation of the aforesaid order and issued promotion order on 16.01.2009, without considering the name of the applicant. Consequent upon issuance of the notice to the respondents, respondents have filed reply, whereby it has been stated that service particulars of the applicant were not called for, as he was not falling in the zone of consideration in terms of the 1980 Rules, validity of which has been upheld by this Tribunal in OA-683/2000 Sharat Kohli (supra), decided on 18.01.2002. It is further stated that the sealed cover procedure can be adopted when following three conditions are satisfied:
i) Govt. servants facing departmental enquiry.
ii) Govt. servants facing criminal proceeding.
iii) Govt. servants under suspension. Thus, according to the respondents, in case seniority of the applicant is varied, pursuant to the judgment to be rendered in the OA, in that eventuality case of applicant for review DPC shall be considered.
24. Respondents have also moved MA-129/2009 for vacation of the ex-parte order dated 30.12.2008. However, no order has been passed on this MA. In view of the fact that this Tribunal has given a direction to the respondents to consider the case of the applicant for the post of Inspector as per Rules and settled law and admittedly the applicant was not entitled for consideration in terms of the judgment rendered by this Tribunal in the case of Sharat Kohli (supra) and further that the respondents have also moved an application for vacation of the stay order, which has not been decided by this Tribunal, we are of the view that it is not a case where the respondents can be held guilty of willful disobedience of the ex-parte order passed by this Tribunal. Since we have dismissed the OAs, upholding the validity of Rule 22 of the 1980 Rules and para-14 of the Standing Order No.291/95, the applicant was not entitled for consideration for promotion to the post of Inspector. Accordingly, notices issued to the respondents are hereby discharged.
MA No.129/2009 MA No.167/2009in OA No.2810/2008
25. In view of the dismissal of the OA as well as Contempt Petition, no orders are required to be passed on MA-129/2009 for vacation of the stay order as well as MA-167/2009 moved by the applicant for condonation of delay.
(Dr. R.C. Panda) (M.L. Chauhan) (V.K. Bali) Member (A) Member (J) Chairman San.