Central Administrative Tribunal - Delhi
Shailendra Singh vs Comm. Of Police on 13 September, 2024
1
C-5 O.A. No. 440/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.440/2019
Reserved on: 03.09.2024
Pronounced on: 13.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
1. INSPECTOR (GN/EXE) SHAILENDRA SINGH @
SHAILENDRA SINGH CHAUHAN
S/o Sh Ram Naresh Singh Age 51 years
Range No. D-1/428
PIS No. 16900004, Group C
SL. No. 287 (as per Integrated Seniority List)
R/o: Quarter No-11, Type 4 ACP Officers Staff
Quarters, Sector 5 Rohini, Rithala
Presently Posted: Police Training College,
Jharoda Kalan, Delhi
2. INSPECTOR (GN/EXE) SURENDER SINGH
S/o Sh. OM Prakash
Age 52 years
Range No. D-1/430
PIS No. 16900076, Group C
SL. No. 289 (as per Integrated Seniority List)
R/o: 48, Extn. No.3, Nangloi, Delhi
Presently posted at Police Training College,
Jharoda Kalan, Delhi
3. INSPECTOR (GN/EXE) KUSUM PAL SINGH @
KUSUM PAL MALIK @KUSUM PAL
S/o Sh. Harbir Singh
Age 53 years
Range No. D-1/436
PIS No. 28892733, Group C
SL. No. 294 (as per Integrated Seniority List)
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C-5 O.A. No. 440/2019
R/o: B-182, Chhatrapur Enclave Phase-2, New
Delhi Presently posted in Security Unit, Delhi
Police.
4. INSPECTOR (GN/EXE) HARI SINGH
S/o Late Sh Satya Narayan
Age 52 years
Range No. D-1/442
PIS 16900017, Group C
SL. No. 300 (as per Integrated Seniority List)
R/o: C7F, Delhi Police Apartments Mayur Vihar
Phase-1, Delhi -91
Presently Posted as SO to Jt CP Eastern Range
5. INSPECTOR (GN/EXE) JAI NARAIN
S/o Sh Fateh Singh
Age 53 years
Range No. D-1/444
PIS NO. 16900113, Group C
SL. No. 302 (as per Integrated Seniority List)
R/o Flat No 91B, Jyoti Apartments Sector 14
Extn, Rohini Delhi - 85
Presently Posted as Inspector in Distt. Rohini
6. INSPECTOR (GN/EXE) DEEPAK CHANDRA @
DEEPAK CHANDRA GUNWANT
S/o Sh. M.C. Gunwant
Age 50 years
Range No. D-I/448
PIS No. 16900020, Group C
SL. No. 307 (as per Integrated Seniority List)
R/o: 68 D, Satyam Enclave, Vivek Vihar, Delhi-
95.
Presently posted at Diplomatic Security Force,
ND District
7. INSPECTOR (GN/EXE) DEVENDER KUMAR
S/o Sh Krishan Chander
Age 51 years
Range No. D-1/470
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PIS No. 16900052, Group C
SL. No. 329 (as per Integrated Seniority List)
R/o: NS-10 Mianwali Nagar, Delhi -87
Presently Posted at Police Training College,
Jharoda Kalan, Delhi.
...Applicants
(By Advocate: Ms. Indira Unninayar)
Versus
1. Commissioner of Police, Delhi Police
Headquarters, MSO Building,
IP Estate, New Delhi - 110002
2. Ministry of Home Affairs
Through Its Secretary, Department of Home
North Block, New Delhi-110001
3. Department of Personnel and Training (DOPT)
Through Its Secretary Ministry of Personnel,
Public Grievances and Pensions North Block,
New Delhi, Delhi-110001
4. JAI BHAGWAN
Inspector (SC/EXE)
Range No. D-1/1078
PIS No. 28840598
SL No. 218 (as per Integrated Seniority List)
5. KESHAV KUMAR
Inspector (SC/EXE)
Range No. D-1/352
PIS No. 16900079
SL No. 219 (as per Integrated Seniority List)
6. ANIL KUMAR
Inspector (SC/EXE)
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C-5 O.A. No. 440/2019
Range No. D-I/353
PIS No. 16900098
SL No. 220 (as per Integrated Seniority List)
7. KAMAL SINGH
Inspector (SC/EXE)
Range No. D-1/354
PIS No. 16900095
SL No. 221 (as per Integrated Seniority List)
8. KRISHAN LAL
Inspector (SC/EXE)
Range No. D-1/355
PIS No. 16900080
SL No. 222 (as per Integrated Seniority List)
9. MADAN LAL MEENA
Inspector (ST/EXE)
Range No. D-I/45
PIS No. 16900036
SL No. 223 (as per Integrated Seniority List)
10. DINESH KUMAR
Inspector (SC/EXE)
Range No. D-1/357 PIS No. 16900050
SL No. 224 (as per Integrated Seniority List)
11. RAKESH KUMAR
Inspector (SC/EXE)
Range No. D-1/359
PIS No. 16900108
SL No. 225 (as per Integrated Seniority List)
12. SUDESH RANGA
Inspector (SC/EXE)
Range No. D-1/360
PIS No. 16900016
SL No. 226 (as per Integrated Seniority List)
13. JITENDER KUMAR
Inspector (SC/EXE)
Range No. D-1/629
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C-5 O.A. No. 440/2019
PIS No. 16900119
SL No. 227 (as per Integrated Seniority List)
14. BACHHU SINGH
Inspector (SC/EXE)
Range No. D-1/361
PIS No. 28830062
SL No. 228 (as per Integrated Seniority List)
15. KAMAL SINGH MEENA
Inspector (ST/EXE)
Range No. D-1/362
PIS No. 16900048
SL No. 229 (as per Integrated Seniority List)
16. RAJENDRA KUMAR MEΕΝΑ
Inspector (ST/EXE)
Range No. D-1/363
PIS No. 16900043
SL No. 230 (as per Integrated Seniority List)
17. HABBU RAM MEENA
Inspector (ST/EXE)
Range No. D-1/366 PIS No. 16900014
SL No. 231 (as per Integrated Seniority List)
18. SUNIL KUMAR
Inspector (SC/EXE)
Range No. D-1/367
PIS No. 16900012
SL No. 232 (as per Integrated Seniority List)
19. RAJENDER KUMAR
Inspector (SC/EXE)
Range No. D-1/368
PIS No. 16900011
SL No. 233 (as per Integrated Seniority List)
20. CHITTAR MAL MEENA
Inspector (ST/EXE)
Range No. D-1/369
PIS No. 28780658
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C-5 O.A. No. 440/2019
SL No. 245 (as per Integrated Seniority List)
21. RAMESH CHAND MEENA
Inspector (ST/EXE)
Range No. D-1/370
PIS No. 16910024
SL No. 246 (as per Integrated Seniority List)
22. AVTAR SINGH
Inspector (ST/EXE)
Range No. D-1/372
PIS No. 16910011
SL No. 247 (as per Integrated Seniority List)
23. UDAIBIR SINGH
Inspector (ST/EXE)
Range No. D-1/373
PIS No. 28821542
SL No. 248 (as per Integrated Seniority List)
24. GAJRAJ SINGH (EXPIRED)
Through LRs
Inspector (ST/EXE)
Range No. D-1/375
PIS No. 16910047
SL No. 249 (as per Integrated Seniority List)
25. DINESH KUMAR
Inspector (ST/EXE)
Range No. D-1/377
PIS No. 28900545
SL No. 250 (as per Integrated Seniority List)
26. MALI RAM MΕΕΝΑ
Inspector (ST/EXE)
Range No. D-1/591
PIS No. 16910058
SL No. 251 (as per Integrated Seniority List)
27. KHARAK SINGH
Inspector (ST/EXE)
Range No. D-1/378
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C-5 O.A. No. 440/2019
PIS No. 16910116
SL No. 252 (as per Integrated Seniority List)
28. SANWAL RAM MEΕΝΑ
Inspector (ST/EXE)
Range No. D-I/592
PIS No. 16910120
SL No. 253 (as per Integrated Seniority List)
29. ARVIND SAGAR
Inspector (ST/EXE)
Range No. D-1/379
PIS No. 16910007
SL No. 254 (as per Integrated Seniority List)
30. RAJ MAL MEΕΝΑ
Inspector (ST/EXE)
Range No. D-1/380
PIS No. 16910038
SL No. 255 (as per Integrated Seniority List)
31. BHARAT RAM MEENA
Inspector (ST/EXE)
Range No. D-1/596
PIS No. 16920079
SL No. 256 (as per Integrated Seniority List)
32. RAJ BHUSHAN LAKRA
Inspector (ST/EXE)
Range No. D-1/381 PIS No. 16920081
SL No. 257 (as per Integrated Seniority List)
33. RACHHPAL SINGH
Inspector (ST/EXE)
Range No. D-1/600
PIS No. 16930006
SL No. 258 (as per Integrated Seniority List)
34. MAHESH CHAND MEENA
Inspector (ST/EXE)
Range No. D-1/382
PIS No. 16920038
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C-5 O.A. No. 440/2019
SL No. 259 (as per Integrated Seniority List)
35. CHHOTU RAM MEENA
Inspector (ST/EXE)
Range No. D-1/383
PIS No. 16920037
SL No. 260 (as per Integrated Seniority List)
36. BANEY SINGH MEENA
Inspector (ST/EXE)
Range No. D-1/384
PIS No. 16920087
SL No. 261 (as per Integrated Seniority List)
37. NARSI LAL MEENA
Inspector (ST/EXE)
Range No. D-1/385
PIS No. 16920060
SL No. 262 (as per Integrated Seniority List)
38. GHANSHYAM MEENA
Inspector (ST/EXE)
Range No. D-1/386
PIS No. 16940220
SL No. 263 (as per Integrated Seniority List)
39. ROHTASH KUMAR
Inspector (ST/EXE)
Range No. D-1/387
PIS No. 16940076
SL No. 264 (as per Integrated Seniority List)
40. BAJRANG LAL
Inspector (ST/EXE)
Range No. D-1/388
PIS No. 16940292
SL No. 265 (as per Integrated Seniority List)
41. MAHESH KUMAR
Inspector (ST/EXE)
Range No. D-1/389
PIS No. 16940241
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C-5 O.A. No. 440/2019
SL No. 266 (as per Integrated Seniority List)
42. RAM PHOOL MEENA
Inspector (ST/EXE)
Range No. D-1/775
PIS No. 16940235
SL No. 267 (as per Integrated Seniority List)
43. SUKHDEV MΕΕΝΑ
Inspector (ST/EXE)
Range No. D-1/390
PIS No. 16940231
SL No. 268 (as per Integrated Seniority List)
44. INDERAJ SINGH MEENA
Inspector (ST/EXE)
Range No. D-1/391
PIS No. 16940229
SL No. 269 (as per Integrated Seniority List)
45. RAM KISHORE MEENA
Inspector (ST/EXE)
Range No. D-1/392
PIS No. 28850682
SL No. 270 (as per Integrated Seniority List)
46. PARWATI KUJUR
Inspector (W/EXE)
Range No. D-1/30
PIS No. 16910004
SL No. 8 (as per Integrated Seniority List)
47. PARVATI DEVI
Inspector (W/EXE)
Range No. D-1/718
PIS No. 28891821
SL No. 41 (as per Integrated Seniority List)
48. SUDESH KUMARI
Inspector (W/EXE)
Range No. D-1/514
PIS No. 24880040
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C-5 O.A. No. 440/2019
SL No. 242 (as per Integrated Seniority List)
49. PROMODINI MINZ
Inspector (W/EXE)
Range No. D-1/515
PIS No. 16910002
SL No. 243 (as per Integrated Seniority List)
50. NEERAJ TOKAS
Inspector (W/EXE)
Range No. D-1/516
PIS No. 27920004
SL No. 244 (as per Integrated Seniority List)
51. PARVEEN KUMARI Inspector (W/EXE)
Range No. D-1/517
PIS No. 16940215
SL No. 277 (as per Integrated Seniority List)
52. RAJNI DHOBHAL
Inspector (W/EXE)
Range No. D-1/527
PIS No. 24880053
SL No. 278 (as per Integrated Seniority List)
53. USHA KUMARI
Inspector (W/EXE)
Range No. D-1/518
PIS No. 24910009
SL No. 279 (as per Integrated Seniority List)
54. ASHA THAKUR
Inspector (W/EXE)
Range No. D-1/520
PIS No. 28882508
SL No. 281 (as per Integrated Seniority List)
55. SANJITA
Inspector (W/EXE)
Range No. D-1/521
PIS No. 16940208
SL No. 282 (as per Integrated Seniority List)
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56. REKHA
Inspector (W/EXE)
Range No. D-1/522 PIS No. 16940304
SL. No. 283 (as per Integrated Seniority List)
57. GIRISH KUMAR (RETD)
Inspector (MIN)
Range No. D-I/108
PIS No. 27780008
SL No. 40 (as per Integrated Seniority List)
58. ANIL CHHATWAL
Inspector (MIN)
Range No. D-1/4
PIS No. 27800009
SL No. 42 (as per Integrated Seniority List)
59. PANCHAM CHAND
Inspector (MIN)
Range No. D-1/6 PIS No. 27820004
SL No. 43 (as per Integrated Seniority List)
60. SURESH CHAND
Inspector (MIN)
Range No. D-1/37
PIS No. 27820005
SL No. 53 (as per Integrated Seniority List)
61. YUGAL KISHORE
Inspector (MIN)
Range No. D-1/63
PIS No. 27820003
SL No. 54 (as per Integrated Seniority List)
62. MANJU LATA
Inspector (MIN)
Range No. D-1/86
PIS No. 27830001
SL No. 234 (as per Integrated Seniority List)
63. BHARAT BHUSHAN (RETD)
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C-5 O.A. No. 440/2019
Inspector (STENO)
Range No. D-I/127
PIS No. 27780007
SL No. 50 (as per Integrated Seniority List)
64. RITAMBRA PRAKASH
Inspector (STENO)
Range No. D-1/3
PIS No. 25870001
SL No. 51 (as per Integrated Seniority List)
65. PREM BALLABH (EXPIRED)
Through LRs
Inspector (STEΝΟ)
Range No. D-I/10
PIS No. 27860202
SL No. 52 (as per Integrated Seniority List)
...Respondents
Respondents No. 4 TO 65 to be served through
Commissioner of Police, Delhi, Police Headquarters,
MSO Building, IP Estate, New Delhi-110002.
(By Advocate: Mr. Ravi Kant for Mr. Hanu Bhaskar for
DoP&T & Mr. Ronak Karanpuria for R1)
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C-5 O.A. No. 440/2019
ORDER
Hon'ble Mr. Manish Garg, Member (J) In the instant OA, the applicants have prayed for the following reliefs:-
"8.1 Quash and set aside the Impugned Integrated Seniority List of Inspectors of Delhi Police as on 1.7.2017, for the purpose of appointment to the Entry Grade of DANIPS finalized by R1 on 31.08.2018.
8.2 Declare as illegal, the determination of Inter Se Seniority from the Date of Promotion (DOP) to Inspector rank while preparing the Integrated Seniority List of Inspectors from different Cadres.
8.3 Direct R1 to prepare, in a transparent manner, a just and proper Integrated Seniority List of Inspectors of The Delhi Police, by maintaining the Inter Se Seniority of Applicant Inspectors vis- à-vis the Private Respondents in the following manner:
a. Apply 'Catch Up Rule' in order to restore the Seniority of the 7 Applicants above the 42 Respondents from SC/ST reserved category from their own Executive (Male) Cadre, b. Restore the Seniority of the 7 Applicants above the 11 Respondents from Women (Exe), 6 Respondents from Ministerial and 3 Respondents Steno Cadres by calculating seniority from the lowest common rank of Sub-Inspector (S1). 8.4 Quash and set aside appointment of 14 persons who are Respondents No. 47, 58, 59, 64, 65 (expired), 60, 61, 46, 9, 15, 16, 17, 49, 20 placed atS. Nos. 30, 35, 36, 43, 44, 45, 46, 55, 153, 154, 155, 156, 157 and 158 into the Entry Grade DANIPS, vide Office Order No 48887-986/CB-I/PHQ dated 10.9.2018, issued under the Signature of DCP Estt. Delhi Police pursuant to Notification No 14016/02/2017-UTS-II dated 10.9.2018 issued by Government of India, Ministry of Home Affairs, R2. 8.5 Direct R2 to consider afresh, the induction of Applicants into 14 C-5 O.A. No. 440/2019 the Entry Grade of DANIPS based on a fair and proper Integrated Seniority List of Inspectors prepared from the concerned Cadres.
8.6 Quash Office Memorandum (OM) No. 20011/1/2001- Estt.
(D) dated 21.01.2002 issued by R3 to the extent that it grants consequential seniority to all Government Servants in a blanket manner.
8.7 Direct R1 to ensure Implementation of the Notification dated 29.06.2012 which categorically barred the Inspector belonging to Steno cadre from being eligible for inclusion in the Common/Integrated Seniority List of Inspectors being considered for induction into DANIPS.
8.8 Pass such other and further orders that this Tribunal may deem fit in the interest of Justice."
2. Learned counsel for the applicants submitted that the applicants, who belong to general category entered into the service of the respondents as Sub-Inspectors on 09.07.1990 and are currently serving as Inspectors in the Executive (Male) cadre of Delhi Police. They are aggrieved by the violation of their inter se seniority in the preparation of the impugned integrated seniority list of Inspectors as on 01.07.2017 finalized on 31.08.2018. The said integrated seniority list has been carved out from four cadres of Delhi Police namely Executive (Male), Executive (Female), Ministerial and Steno, amongst which, a combined 15 C-5 O.A. No. 440/2019 seniority list has been prepared even though there are no such rules in existence.
2.1. Learned counsel for the applicants further submitted that out of 62 private respondents 42 are from Executive Cadre i.e. their own cadre. A flow chart in this regard has been shown by the learned counsel for the applicants, which is as under:-
16C-5 O.A. No. 440/2019
2.2. Learned counsel for the applicants highlighted that 42 private respondents who were working as Sub-Inspectors belong to SC/ST category. They were promoted prior to the applicant to the post of Inspector by way of accelerated promotion as there were vacancies available in SC/ST category. She further submitted that the inter se seniority violates the catch-up rules in terms of the various decisions passed in the matter of M. Nagaraj vs. Union of India (2006) 8 SCC 212, S.Panneer Selvam & Ors vs Govt.Of T.Nadu & Ors (2015) 10 SCC 292, B. K. Pavitra vs. Union of India, (2017) 4 SCC 620 & Jarnail Singh vs. Lachhmi Narain Gupta (2018) SCC Online SC 1641.
2.3. Learned counsel for the applicants further highlighted that despite the applicants (7 in number) reaching the rank of Inspector while 26 SC/ST accelerated promotees remained as Inspector, the 26 juniors from the reserved category continue to remain wrongly placed above the applicants at SI No.245-270 while the applicants are placed between SI No.287 and 329 in the said integrated 17 C-5 O.A. No. 440/2019 seniority list.
2.4. Learned counsel for the applicants had drawn attention to page no.2 of the written synopsis dated 25.01.2023, wherein the following flow chart has been shown:-18 C-5 O.A. No. 440/2019
2.5. Learned counsel for the applicants also submitted that all the applicants herein have been promoted on the post of Inspector w.e.f. 01.12.2007. She highlighted that similarly placed persons as that of the applicants herein preferred an OA No.3507/2017 which was disposed of by this Tribunal vide order dated 24.08.2018. She submitted that this Tribunal did not consider the integrated list on merits and dismissed the case being premature. 2.6. Learned counsel for the applicants clarified that this integrated seniority list merging four cadres in a common list has been prepared for promotion to the post of Inspector only.
2.7. Learned counsel for the applicants argued that the applicants are not disputing the seniority of the persons working as Inspector appearing from SI No.234 to 244 in the said list.
2.8. Finally, the learned counsel argued that position of the applicants should be restored vis-à-vis their seniority in the post of Sub-Inspector following the catch-up rule. 19 C-5 O.A. No. 440/2019
3. Opposing the grant of relief, the learned counsel for respondent no.1 relied upon the averments made in the counter affidavit. He stated that the issue involved in the present matter is no longer res integra in light of the decision rendered in the matter of Kirori Lal & anr. Vs. The Secretary, Ministry of Home Affairs & Ors., in OA No.4383/2015 wherein it has been held as under:-
"3. The learned counsel for the respondents submitted that the aforesaid judgment of the Hon'ble Supreme Court (paragraph 35 quoted above) itself holds that the 'catch-up rule' would apply only "in the absence of any provision for consequential seniority in the rules", that rule 10 of the Delhi Police (Promotion and Confirmation) Rules 1980 lays down that reservations in promotions shall be made in accordance with the rules/orders issued by the Government of India from time to time, and that the DoP&T's OM No.20011/1/2001-Estt.(D) dated 21.01.2002 (Annexure R-2), followed by the respondents, has given a go-by to the 'catch-up rule', paragraph 3 whereof reads as under:
"The Government have now decided to negate the effects of the DOP&T OM dated 30 th January, 1997 by amending Article 16(4A) of the Constitution right from the date of its inclusion in the Constitution i.e. 17 th June, 1995, with a view to allow the Government servants belonging to SCs/STs to retain the seniority in the case of promotion by virtue of rule of reservation. In other words, the candidates belonging to general/OBC category promoted later will be placed junior to the SC/ST Government servants promoted earlier even though by virtue of the rule of reservation."
4. Significantly, the aforesaid OM dated 21.01.2002 (Annexure R-2) is not a subject matter of challenge in the present OA. 20 C-5 O.A. No. 440/2019
5. We see substance in the aforesaid submissions made on behalf of the respondents and are of the view that the instant OA deserves to fail.
6. The OA is dismissed. The interim order dated 04.12.2015 stands vacated. No order as to costs."
3.1. Learned counsel for respondent no.1 relied upon the DoP&T OM dated 21.01.2002 and highlights the following clauses:-
"3. The Government have now decided to negate the effects of the DOP&T OM dated 30th January, 1997 by amending Article 16(4A) of the Constitution right from the date of its inclusion in the Constitution i.e. 17th June, 1995 with a view to allow the Government servants belonging to SCs/STs to retain the seniority in the case of promotion by virtue of rule of reservation. In other words, the candidates belonging to general/OBC category promoted later will be placed junior to the SC/ST Government servants promoted earlier even though by virtue of the rule of reservation.
4. Therefore, in pursuance of the aforementioned Constitution (Eighty- fifth) Amendment Act, 2001, it has been decided as follows:
(i) (a) SC/ST Government servants shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also; and (b) the above decision shall be effective from 17th June, 1995
(ii) The instructions contained in DOPT OM No. 20011/1/96-
Estt (D) dated 30.1.1997 as well as the clarifications contained in DOPT OM No.20011/2/97- Estt. (D) dated 21.3.1997 shall stand withdrawn w.e.f.30.1.1997 itself.
(iii) Seniority of Government servants determined in the light of O.M. dated 30.1.1997 shall be revised as if that O.M. was never issued.
21C-5 O.A. No. 440/2019
(iv) (a) On the basis of the revised seniority, consequential benefits like promotion, pay pension, etc. should be allowed to the concerned SC/ST Government servants (but without arrears by applying principle of no work no pay)
(b) For this purpose, senior SC/ST Government servants may be granted promotion with effect from the date of promotion of their immediate junior general/OBC Government servants.
(c) Such promotion of SC/ST Government servant may be ordered with the approval of Appointing Authority of the post to which the Government servant is to be promoted at each level after following normal procedure of DPC (including consultation with UPSC).
(v) Except seniority other consequential benefits like promotion, pay etc, (including retrial benefits in respect of those who have already retired) allowed to general/OBC Government servant by virtue of implementation of O.M. No. dated 30.1.1997 and/or in pursuance of the directions of CAT/Court should be protected as personal to them."
3.2. Learned counsel for the respondents added that it is a fact that in light of clause 3 highlighted herein above, the effect of the amendment in the seniority in question came only in operation on 17.06.1995.
3.3. In addition to the aforesaid objections, the learned counsel for respondent no.1 also raised question on maintainability of the present OA due to non impleadment of the necessary parties. He argued that the catch up rule does not apply in the case of the applicants herein. In 22 C-5 O.A. No. 440/2019 support of his arguments, he relied upon the decision rendered in OA No.1454/1998 of this Tribunal which was upheld by the Hon'ble High Court in Writ Petition (Civil) No.7721/2001 wherein it has been held as under:-
"Having regard to the fact that the placement of some respondents in the integrated seniority list above the petitioner have not been specifically questioned by the petitioners before the Tribunal such a question cannot be permitted to be raised for the first time in this writ petition. Inasmuch as the respondents must be given proper opportunity to agitate the said allegation before the Tribunal itself.
For the reasons afore-mentioned, we do not find any reason to interfere with the impugned judgment of the Tribunal, which is accordingly dismissed."
3.4. Learned counsel for the respondent No. 1 further argued that reservation in promotion itself has been contemplated under the Delhi Police (Promotion & Confirmation) Rules, 1980. The relevant extracts are reproduced as under:-
"10. Reservations Reservations in promotions shall be made for Scheduled Castes/Scheduled Tribes and other categories in accordance with the rules/orders issued by Government of India from time to time.
[11. When promotion to be made Save as provided in the Delhi Police Promotion and Confirmation Rules, 1980, framed under the Delhi Police Act, 1978, all 23 C-5 O.A. No. 440/2019 vacancies excepting those to be filled by direct recruitment, shall be filled by promotion/deputation in the manner prescribed in these rules.]
12. Promotion List 'A'.
(i) (a) Promotion list 'A' (Executive) shall be a list of confirmed constables (Executive) Considered fit for being sent to lower School Course. Confirmed Constables having a minimum of 5 years service shall be eligible for consideration. The list shall be framed on the recommendations of the departmental promotion committee which shall adopt The evaluation system based on (1) Service record (2) Seniority (3) Annual Confidential Reports (4) Acquittance in Professional test which shall cover following subjects: ...............
(i) Physical Training and Parade,
(ii) Elementary law and Police practical work,
(iii) General Knowledge,
(iv) Professional work done, A constable up to 40 years of age shall be eligible to take tests and only ten chances will be allowed. The names of selected constables shall be brought on list 'A' in order of likely to be available in the following one year.
The selected constables will be sent for lower School Course subject to their medical fitness by the Civil Surgeon. [(b) Constables with a minimum of 2 years of service shall be eligible to undergo Drill Instructors Course. On satisfactory completion of the course with 1st Class proficiency certificate, their names shall be brought on promotion list 'A' sent for framing in the next Lower School Course alongwith others, irrespective of their seniority. It is subject to the medical fitness by the Civil Surgeon.]"
4. In rejoinder, the learned counsel for the applicants 24 C-5 O.A. No. 440/2019 contended that the general principle of promotion specifically applies to the case of the applicants and there is no dispute about the fact that promotion in terms of the aforesaid Rule 10 is to be given. The question here arises for consideration is qua the integrated seniority list as well as the inter se seniority list whether they could be disturbed or not under the relevant rules. She further highlighted that the rules of seniority are silent on the said aspect. The Rule 10 only contemplates about the promotion and the benefits being accorded to the SCs/STs in accordance with the Constitution mandates.
5. Learned counsel for respondent no.1 further highlighted Clause 17 of the Delhi Police (Promotion & Confirmation) Rules, 1980, which reads as under:-
"[17. List 'F'. - (i) List-F (Executive) Confirmed Sub-Inspector (Executive), who have put in a minimum of 6 years service in the rank of Sub-Inspector, shall be eligible. The selection shall be made on the recommendations of the Departmental Promotion Committee. The names of selected Sub-Inspector shall be admitted to List-F (Executive) on the basis of their respective seniority, keeping in view the number of vacancies likely to occur in the following one year, and promotion made to the rank of Inspector from this list as and when vacancies become available.] 25 C-5 O.A. No. 440/2019
(ii) List-F (Technical) Confirmed Sub-Inspector (Specialised/Technical), who have put in a minimum of 6 years service in the rank of Sub-Inspector in their respective cadres, shall be eligible. The selection shall be made on the basis of the recommendations of the Departmental Promotion Committee. The names of selected Sub-Inspector shall be brought on List-F (Specialised/Technical) in order of their respective seniority, keeping in view the number of vacancies likely to fall vacant in the following one year, and they shall be promoted to the rank of Inspectors in their respective cadres as and when vacancies become available.
(iii) List-F (Ministerial) [Confirmed Sub-Inspector (Ministerial) and Confirmed Shorthand Reporters (Sub-Inspectors) having [6 years] service in the rank of Sub-Inspr. (Min.) and Shorthand Reporter (Sub-Inspr.) respectively shall be eligible. The selection shall be made on the recommendations of the Departmental Promotion committee. The names of the Sub-Insprs. (Min) and Shorthand Reporters (Sub-
Insprs.) so selected shall be brought on list 'F' (Min.) in order of their respective seniority, keeping in view the number of vacancies likely to occur in the following one year, and promotions made to the rank of Inspr. (Min.) from this list as and when vacancies become available.]"
6. The learned counsel for the applicants highlighted the following rules of the Delhi Police (Promotion & Confirmation) Rules, 1980 annexed at page nos. 139 & 140 of the OA:-
"6. Promotion to be earned only in concerned cadres - Unless otherwise provided in these or any other rules framed under the Delhi Police Act, 1978, each member of subordinate rank shall earn promotion in his/her cadre in accordance with the Rules applicable to that cadre.26 C-5 O.A. No. 440/2019
7. Promotion of enrolled Police: personnel List A. B.C.D-I, D-II, E-I, E-II and F shall be maintained for selection, for regulating promotional courses, where applicable and promotion to various subordinate ranks. Each list shall be the nominal roil of police personnel considered suitable for further advancement in the concerned ranks, as provided in this rule, and shall be maintained separately for (1) Executive (2) Technical and (3) Ministerial Cadres.
4[(ii) The conduct and efficiency of men on promotion list shall be, at all times, watched with special care. Amy officer whose name exists on the promotion list, if found guilty of a misconduct of nature reflecting upon his character or fitness for responsibility or who shows either, by specific acts or by his record as a whole that he is unfit for promotion to higher rank shall be reported to the Deputy Commissioner of Police, head Quarters (1), Delhi in respect of persons on lists 'A' to 'E' and to Additional Commissioner of Police (Administration) Delhi in respect of officers on list 'F'. However, final decision regarding removal of name(s) from a promotion list shall be taken by the Appointing Authority only after giving show cause notice to the individual]."
6.1 In support of her arguments, the learned counsel for the applicants had drawn attention to the following paras of the synopsis filed on behalf of the applicants on 25.01.2023:-
"4. In Ajit Singh II, (1999) 7 SCC 209, dated 16.09.1999, the Supreme Court mandated the application of 'Catch-up Rule' and held granting Consequential Seniority to reserved category promotees unconstitutional. The Court reiterated that its previous two judgments UOI & Ors. Virpal Singh Chauhan & Ors., (1995) 6 SCC 684 dated 10.10.1995 and Ajit Singh I, (1996) 2 SCC 715 dated 01.03.1996-had correctly upheld the 'Catch-up Rule'. (Paras 23, 77) 27 C-5 O.A. No. 440/2019 On inter-se Seniority and Date of Promotion
12.In Ajit Singh II vs State of Punjab (1999) 7 SCC 209, dated 16.09.1999, it was held that where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity as stated in Article 16(1).
a. For promotion based on seniority-cum-suitability, the eligible seniors at the basic level as per seniority fixed at that basic level who are within the zone of consideration must be first considered for promotion and promoted if found suitable. Their seniority would be counted from date of promotion because they get promotion through a process of equal opportunity (Para 23) b. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, then he will have to be promoted first (Para 23) c. There are variations but in all cases, the senior most person at the basic level, has to be considered first (Para 23).
d. This is how the right to be considered for promotion and the 'seniority' attached to such promotion become important facets of the fundamental right guaranteed in Art 16(1) (Para 23)."
7. Mr. Hanu Bhaskar, learned counsel appearing for DoP&T submitted that the DoP&T has no role in the present matter as such.
8. ANALYSIS 8.1. The Hon'ble Supreme Court in Virpal Chauhan (supra) held that once a general candidate is promoted, he would become senior to an already promoted SC/ST candidate if 28 C-5 O.A. No. 440/2019 he/she had been senior in the lower cadre. This was termed the 'catch-up' rule. Again in the case of Ajit Singh - II (supra), it had held that a general employee will regain seniority over an earlier promoted SC/ST employee if the former is promoted prior to the latter to the next higher cadre.
8.2. The Parliament intervened against the ruling in 2001, with the 85th Constitutional Amendment to provide consequential seniority. The amendment substituted the words 'in matters of promotion to any class' with the words 'in matters of promotion, with consequential seniority, to any class' in clause (4A) of Article 16 of the Constitution. Even the government of Karnataka enacted a law providing consequential seniority for SCs/STs promoted under reservation in promotions.
8.3. Both of these amendments were challenged in the case of M Nagraj (supra). Even though the Hon'ble Supreme Court upheld both the amendments it rejected the argument that replacement of 'catch-up rule' with 'consequential seniority rule' as it violates the basic 29 C-5 O.A. No. 440/2019 structure of the Constitution. The Hon'ble Supreme Court held that Article 16(4A) is just an enabling provision, and the state is not bound to provide for reservation in promotion, but if it wants to do so, it must meet the requirement of collection of quantifiable data on three aspects:
a) The backwardness of the class, b) Inadequacy of representation c) The general efficiency of services not to be affected. 8.4 On January 28th 2022, Hon'ble Justice(s) Shri Nageswara Rao, Shri Sanjiv Khanna and Shri B.R.
Gavai delivered a Judgment reaffirming that the State governments must justify reservation in promotion policies for SC/ST candidates through quantifiable data. The Bench declined to answer many of the State governments' questions about the implementation of the 5-Judge Bench decision in Jarnail Singh (supra). The Hon'ble Justice Rao J, pronouncing the Judgment for the Bench, provided some clarity by stating that the promotional reservation policies must be based on data of inadequate representation in the 30 C-5 O.A. No. 440/2019 specific post sought to be reserved, not the entire service. He also clarified that State governments must devise a system of reviewing data in a reasonable time period. 8.5 Reservation in promotion may be now a norm but light of 85th Constitutional Amendment to provide promotional reservation policies.
8.6 From the above background and discussions following points can be crystallized:-
(i) The decision in Virpal Singh Chauhan (supra) held that the catch-up rule would be applied only from 10-02-
1995 which was the date of the judgment in R.K. Sabharwal v. Slate of Punjab. [1995] 2 SCC 745.
(ii) The decision in Ajit Singh II (supra) specifically protected the promotions which were granted before 1 March 1996 without following the catch-up rule;
(iii) The applicants were all appointed on 1990, i.e., pre- 10.02.1995 decision, thus, their conditions for services, i.e., promotions seniority etc in light of 1980 Rules could not have been altered.
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(iv) The promotions of reserved candidates based on consequential seniority which took place before 01.03.1996 were specifically protected. Since promotions granted prior to 01.03.1996 were protected, legislature passed an enactment to protect consequential seniority known as 'The Reservation Act 2018. The object of the Reservation Act 2018 was to accord consequential seniority to promotees against roster points. This is not a case in the present OA as it is not is dispute that the private respondents were all juniors to the applicants in SI cadre and were promoted after 01.03.1995. It was held in M.G. Badappanavar & Ors. Etc vs. State of Karnataka AIR 2001 SC 260, "...according to Ajit Singh II, if by the date when the reserved candidates were promoted as Superintending Engineers, the general candidates had already reached the said level by normal promotion system, then the general candidates must be treated as seniors as Executive Engineers to the reserved candidates. The general candidates had a right under Articles 14 and 16 to be considered for promotion as Superintending Engineers as seniors to the reserved 32 C-5 O.A. No. 440/2019 candidates. This was unfortunately not done. ( After Ajit Singh II, this had to be rectified.)"
- (emphasised)
(v) The OM, which was prospective in nature, cannot take away consequential seniority of general candidates who were already senior in respective SI cadre, but can only safeguard reservation in promotion. The consequential seniority of general candidates, i.e., the applicants, who were appointed on 1990, much ahead of the private respondents who were appointed as SI in respective cadre later but promoted at an earlier date post OM dated 21.01.2002 have to be protected.
(vi) The OM dated 21.02.2002 has to be prospectively applied insofar as denial of consequential seniority to the general candidates. For a harmonious construction and striking a balance, i.e., reservation in promotion vis-a-vis seniority, proper meaning and effect has to be given in light of specific provisions under Delhi Police Rules, 1980, till 1980 Rules are to be amended that is to say that Rule 17 of 1980 Rules stipulates and marks a clear, definite and 33 C-5 O.A. No. 440/2019 distinct sets of cadres in SI. The said Rule read with Rule 18 (Confirmation) speaks of promotion and protects the inter se -seniority amongst different services amongst respective Lists of cadre, i.e., List-A to List- F. This also gains significance because it is well settled law that OM are to supplement the Statute (1980 Rules) and not be in read in derogation to it.
(vii) We have to go by Statute, wherein, under Rule 4 "Subordinate ranks" means members of the Police force and below the rank of the Inspector. In terms of Rule 5 (i) of 1980 , Rules, i.e., General principles of promotion contemplates "Promotions from one rank to another and from lower grant to the higher grade in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection (Amended vide Notification No. F.5/60/83-H(P)/Estt., dated April 7, 1984). Sub-
Rule (ii) states. All promotions from one rank to another against temporary or permanent vacancies, except in the case of ad-hoc arrangements shall be on officiating basis. The said sub-Rule (ii) has to be read 34 C-5 O.A. No. 440/2019 in consonance with Rule 19 of 1980 Rules (Ad-hoc promotions). Rule 7 stipulates that List A. B.C.D-I, D- II, E-I, E-II and F shall be maintained for selection, for regulating promotional courses, where applicable and promotion to various subordinate ranks. Each list shall be the nominal roil of police personnel considered suitable for further advancement in the concerned ranks, as provided in this rule, and shall be maintained separately for (1) Executive (2) Technical and (3) Ministerial Cadres.
(viii) Last, but not the least point to ponder is when we take note of the Rule 4 "Subordinate ranks" defined to means members of the Police force "of and below the rank of the Inspector". Whether integrated seniority list of Inspector(s) could have disturbed and undone the intra- se seniority as well as inter-seniority amongst separate List -F Under Rule 17 of Sub -Inspector is questionable.
(ix) We may also highlight that the constitutional mandate to grant reservation in promotion is not in 35 C-5 O.A. No. 440/2019 dispute but is all levels, i.e., also at the level of Inspector is questionable in light of 1980 Rules. The consequential seniority amongst separate List -F, under Rule 17 of Sub -Inspector ought to have been maintained while granting reservation in promotion at the level of Inspectors. Even there is nothing on record to show that an exercise for collection of quantifiable data on three aspects as stated in terms of decision of the Hon'ble Apex Court had been carried out.
8.7. We may also clarify that an endevour has been made to address the issue(s) being dealt with specific reference to the context of 1980 Rules only. 8.8. The decision of Kirori Lal (supra) relied upon by respondents to justify their action does not apply to the present case as the OM dated 21.01.2002 has been challenged. The decisions referred by the respondents did not estopped or pre-cludes the applicant to challenge the final seniority list dated 31.08.2018 which is a subsequent development.
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9. CONCLUSION 9.1. We therefore, dispose of the present OA with directions to the official respondents to grant and re-fix the seniority of the applicants herein who were appointed as Sub Inspectors on 09.07.1990, i.e., prior to private respondents and are still in service by taking into account their prior intra-se as well as inter-se seniority position in respective cadre of SI by applying the Catch Up Rule.
9.2. To put a queitus to the issue, this decision shall not apply to Inspectors who have already superannuated on the date of pronouncement of this decision.
9.3. The applicants have already been promoted as Inspectors, no financial benefits shall be accorded except restoring seniority position.
37C-5 O.A. No. 440/2019 9.4. This exercise shall be completed within a period of two months from date of receipt of certified copy of this order. All pending MAs, if any, shall also stand disposed of. No costs.
(Dr. Anand S. Khati) (Manish Garg) Member (A) Member (J) /yaksh/