Central Administrative Tribunal - Delhi
Rakesh Tyagi vs Comm. Of Police on 30 May, 2018
Central Administrative Tribunal
Principal Bench
OA No.3308/2013
Order Reserved on:09.05.2018
Order Pronounced on:30.05.2018
Hon'ble Mr. V. Ajay Kumar, Member, (J)
Hon'ble Ms. Nita Chowdhury, Member (A)
Rakesh Tyagi,
HC in Delhi Police,
PIS No. 28821828
Aged about 51 years,
S/o Sh. D.R. Tyagi,
R/o C-94, Gali No.9,
Khajoori Khas Colony,
Delhi-110094 - Applicant
(By Advocate: Mr. Anil Singal)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi
2. Joint CP (HQ)
PHQ, IP Estate, New Delhi
3. Deputy Commissioner of Police,
(Establishment), PHQ,
IP Estate, New Delhi - Respondents
(By Advocate: Ms. Rashmi Chopra)
ORDER
By Hon'ble Ms. Nita Chowdhury, Member(A):
This Original Application (OA) has been filed by the applicant claiming the following reliefs:-
"1. To call for the records relating the case of the applicant and quash and set aside the 2 impugned Order dt. 6.8.2012 and direct the respondents to promote the applicant to the post of HC w.e.f. 1991-92 when his juniors were promoted to the post of HC and also as ASI w.e.f. the Year 2008 when those juniors of the applicant who were promoted to the post of HC in the year 1991-92, were promoted to the post of ASI in the year 2008 with all consequential benefits including seniority/promotion and pay.
Or alternatively (if A not possible) (B) To direct the respondents to grant the applicant all those benefits that were given to the applicant‟s juniors who were allowed to sit in the Promotion List „A‟ Test n the year 1989 and promoted also to the post of HC from that examination with all consequential benefits including seniority and subsequent promotions.
2. To award costs in favour of the applicant and pass any order or orders which this Hon‟ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. The facts, in brief, are that the applicant was appointed to the post of Constable (Exe.) in Delhi Police on 01.05.1982. He was placed under suspension w.e.f. 22.06.1985 due to his involvement in FIR No. 192/85 PS Bara Hindu Rao, Delhi. He was reinstated on 22.02.1990. However, upon acquittal from the case FIR No. 192/85, period of his suspension from 22.06.1985 to 22.02.1990 was treated as „spent on duty‟ for all intents and purposes, vide order dated 16.07.1997. The respondent - Department, vide order dated 17.02.1999, confirmed the service of the applicant in the rank of Constable (Exe.) w.e.f. 01.02.1986. As the applicant was not a confirmed Constable (Executive) 3 having 5 years of service, he was not included in the Promotion List „A‟ Test held in the years 1989, 1992 and 1999. However, his juniors were allowed to appear in the said Test and promoted to the post of HC in the year 1991 onwards. The respondent - Department did not prepare and publish any Promotion List A Test during the period 1999 to 2004. In the Promotion List „A‟ Test announced by the respondent - Department in the year 2005, the applicant was not included on the ground of his overage of 40 years. His representation for inclusion therein was turned down by the respondent - department, vide order dated 08.04.2005.
3. It is the further contended that after the applicant was acquitted in the criminal case on 02.04.2009 and his exoneration of the charge in departmental proceeding, vide order dated 12.08.2010, he was considered and promoted on the basis of Promotion List „C‟ to the post of HC w.e.f. 18.11.2004, vide order dated 30.08.2011. Thereafter, the applicant submitted a representation in July 2012 requesting the respondents to promote him as HC w.e.f. 1991-92 and ASI w.e.f. 2008 when his immediate juniors were so promoted to the post of HC and ASI respectively. The said representation was rejected by the respondent - Department vide order dated 06.08.2012. 4
4. Mr. Anil Singal, learned counsel, in support of the case of the applicant, has relied upon the decision of the Hon‟ble High Court of Himachal Pradesh in Hemant Kumar vs. State of H.P., [2011(6) SLR 199(HP] which is reproduced below:-
"Heard ad gone through the record.
2. Petitioner was posted as Constable in the Police Department at Shimla, in the year 1995, when he was directed to report for duty at Police Lines, Kaithu, Shimla. He, allegedly, did not comply with the order. A notice, calling upon him, to show cause why penalty of „Censure‟ be not imposed, was served upon him. He did not respond to that notice and, therefore, proposed penalty of „Censure‟ was imposed, vide Annexure P-3, which is dated 21.11.1995. Three more Constables, alongwith the petitioner, were visited with the aforesaid penalty. Petitioner and Leela Dass, one of the other three constables, filed appeal against the order of penalty of „Censure‟. Their appeal was accepted by Deputy Inspector General of Police, vide order dated 20.2.1996, copy Annexure P-7. It was held that the petitioner and his colleague Leela Dass, could not comply with the direction for attending duty at Police Lines, Kaithu, because they had not been relieved by the Officer, with whom they were attached.
3. Thereafter, in the year 1996, some tests of Constables were to be conducted for promoting them to the post of Head Constables. Petitioner was also eligible for taking that test, but he was not permitted to take that test, on the ground that he had been visited with a penalty, vide order, copy Annexure P-3, despite the fact that the said order of penalty, had been set aside in appeal, vide order, a copy Annexure P-7of the D.I.G.
4. Petitioner did not challenge the action of the respondents, in not allowing him to take test for promotion, immediately. However, his colleague Leela Dass filed an Original Application before the H.P. State Administrative Tribunal. That petition, on abolition of the Tribunal, got transferred to this Court. That was heard and decided by this Court, vide judgment dated 17.8.2010, copy Annexure P-10. Allowing that petition of Leela Dass, a colleague of the 5 petitioner, this Court directed that petitioner be treated as having passed the requisite test for promotion to the post of Head Constable and be given promotion and all consequential benefits.
5. After the case of Leela Dass was decided in his favour by this Court, petitioner woke up from his slumber and filed the present petition, in the year 2011. Petitioner, having approached this Court, about 15 years after the impugned action of the respondents, cannot be treated on par with his companion Leela Dass. However, the fact remains that his candidature, for taking test for promotion to the post of Head Constable, was rejected illegally and on the grounds which did not exist. So it is ordered that he, like Leela Dass, be also treated as having taken the test and passed the same, and given promotion as Head Constable, with consequential benefits from the date of petition, i.e. 22.3.2011."
5. The respondents have filed their reply and, except for reiterating the admitted facts, denied the averments of the applicant made in the OA. The respondents have, however, submitted that as per Rule 12(i)(a) of the Delhi Police (Promotion & Confirmation) Rules, 1980 and SO No.91 framed from time to time, a confirmed Constable having a minimum 5 years of service, upto the age of 40 years, shall be eligible to take part in the test and maximum 10 chances are allowed. The applicant was not considered to appear in the „A‟ List Test drawn in 1989, 1992 and 1991 as he was neither eligible to take part in „A‟ List Test for want of confirmation during the said period nor had he tried to participate in the said test. The respondents further submit that for the „A‟ list test, 2005, the applicant was not allowed to appear in the said Test being overaged. However, the 6 name of the applicant was considered in the year 2004, 2005, 2006, 2007, 2008 and 2009 for promotion list "C", but his name was kept in sealed cover due to involvement in Crl. Case FIR No. 192/90. Consequently, upon his acquittal in Crl. Case and suspension period decided as period „spent on duty‟, his result of promotion list „C‟-2004 which was kept in sealed cover was opened on 09.08.2011 and he was found fit. Hence his name was brought on promotion list „C‟ (Exe.) w.e.f. 09.11.2004 along with his counterpart and subsequently promoted of the rank of HC (Exe.) w.e.f. 18.11.2004 vide notification dated 30.08.2011. Hence, the claim of the applicant for being promoted from the year 1991 onwards when his juniors were promoted has no legs to stand and the OA is liable to be dismissed being misconceived.
6. The applicant has also filed rejoinder stating therein that if his name can be considered and kept in sealed cover during the pendency of the criminal case since the year 2004, he should have been allowed to sit in the Promotion List Ä" Tests, he would have participated and his result could have been kept in sealed cover. However, non-providing of such opportunity entirely lies on the part of Delhi Police and equity demands that he be treated as promoted to the rank of HC w.e.f. 1991-92 i.e. the second Promotion List Ä" Tests for which he was eligible to participate following the analogy that was approved in OA No. 88/07 vide 7 judgment dated 12.09.2007 and upheld by the High Court of Delhi vide judgment dated 16.01.2008 that was further upheld by the Apex Court on 22.01.2010.
7. The respondents have filed additional affidavit in compliance of the Tribunal‟s order dated 27.09.2017 quoting Rule 12 of Delhi Police (Promotion & Confirmation) Rules, 1980, which inter alia, read as under:-
"12. Promotion List Á'.-(i)(a) Promotion list Á'(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 promotional committee which shall adopt the evaluation system based on (1) Service record (2) Seniority (3) Annual Confidential Reports (4) Acquaintance 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 Á' in order of their seniority keeping in view the number of vacancies in the rank of Head Constables likely to be available in the following one year."
8. It is further submitted that the applicant was considered for promotion under Rule 12 of the Delhi Police (Promotion & Confirmation) Rules, 1980 but his request could not be acceded 8 as he was overage i.e. above 40 years of age for being eligible for Part „A‟ List and was also disqualified as he did not fulfil the eligibility criteria. Moreover, admittedly, as the applicant himself contends that he is entitled for Promotion List Á‟ by way of sitting in exams held in 1989, 1992, 1999 and 2005, the present OA is barred by delay and laches and on this ground alone, the OA is liable to be dismissed.
9. It is further averred that the applicant was considered for promotion in the year 2004, 2005, 2006, 2007, 2008 and 2009 for Promotion List Ç‟ but he could not be promoted due to pendency of criminal proceedings and sealed cover procedure. It is pertinent to mention here that the applicant was confirmed w.e.f. 01.02.1986 and as such, he was always eligible to participate in „A‟ List test before attaining the age of 40 years but he never bothered to apply/participate in the test along with his batchmates prior to attaining 40 years of age and this act of the applicant will not ipso facto lead to entitlement to the Promotional List „A‟ Test.
10. The respondents further submitted that despite the pendency of the criminal cases, the applicant was entitled to apply for the „A‟ List as he had the right to be considered for promotion. It is well settled law that the eligibility and essential 9 criteria have to be met even if the result on participation and consideration of promotional prospectus is kept in a sealed cover.
11. Heard the learned counsel for the parties and perused the record.
12. The short issue involved in this OA is whether the claim of the applicant for promotion to the post of HC w.e.f. 1991-92 is justifiable or not.
13. It is an undisputed fact that the applicant was entitled to apply for Promotion List „A‟ Tests from 1999 onwards when he was confirmed as Constable (Exe.) w.e.f. 01.02.1986 vide order 17.02.1999 upon acquittal in case FIR No.192/85 and the period of his suspension from 22.06.1985 to 22.02.1990 being treated as „spent on duty‟. It is only in the year 2012, he made a representation requesting the respondents to promote him as Head Constable w.e.f. 1991-92 and the same was rejected by the respondents vide order dated 06.08.2012 which read as under:-
"OFFICE OF THE COMMISSIONER OF POLICE:
DELHI Sub: Reg. Appeal/request of HC (Exe.) Rakesh Tyagi NO.1265/W (PIS No.28821828) for considering the case of the appellant for promotion to the post of ASI. Please refer to our office memo No.10347/SIG/DA- II(West) dated 187/2012 on the subject cited above. The application submitted by HC (Exe) Rakesh Tyagi No. 1265/W(28821828) has been examined in this Hdqrs and it is observed that he was enlisted in Delhi Police as Const. (Exe.) on 1.5.1982 and placed under 10 suspension w.e.f. 22/6/1985. He was re-instated in 1990 and confirmed as Const.(Exe.) w.e.f. 1.2.1986 during 1999. Two criminal cases were pending against him, hence he was not entitled to appear in "A" list during 1992. Moreover, he was also not confirmed at that time. He became due for promotion in 2004 through "C" list and was promoted as HC w.e.f.
18.11.2004 vide order dated 30.8.2011. His claim for promotion as HC(Exe.) through "A" list w.e.f. 1992 is not justified and his promotion already made w.e.f. 18.11.2004 is correct. His representation is hereby rejected."
14. From the above order, it is clear that since there were two criminal cases pending against the applicant, the respondents have rightly not allowed the applicant to appear in Promotion "A" test during 1992. Thus, we do not find any infirmity in the aforesaid order of the respondents passed on the representation of the applicant. The respondents have also rightly promoted the applicant through Promotion List „C‟ in the year 2004 vide order dated 30.08.2011 after having been acquitted in the criminal cases and opened the sealed cover.
15. It is also to be noted that the applicant has neither produced any evidence on record to show that he was prevented by the respondents to appear for the Promotion Á Test when his batchmates appeared from 1999 onwards nor has he furnished any explanation as to why he did not agitate the matter during the relevant period of time. The applicant has, thus, filed the present OA at such a belated stage. The period of limitation prescribed for filing the OA before the Tribunal is one year. In the case of D.C.S. 11 Negi v. Union of India & others (Civil Appeal No.7956 of 2011) decided on 7.3.2011, the Apex Court viewed that the Tribunal should give due regard to Section 21 of Administrative Tribunals Act, 1985. Relevant portion of said judgment reads thus:-
"Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-
"21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where -
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in 12 clause (a), or, as the case may be, clause (b), of sub-
section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period".
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant."
16. Similarly, in Ramesh Chand Sharma etc. vs. Udham Singh Kamal & Ors., 2000 (2) AISLJ S.C. 89, Hon‟ble Supreme Court held as under:
13
"7. On perusal of the materials on record and after hearing Counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21 (3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21 (1) of the Administrative Tribunals Act, 1985."
17. With regard to delay the Hon‟ble Apex Court in the case of Bhoop Singh vs. Union of India and others, 1992 (3) SCC 136 has held as under:
"2. Petitioner, Bhoop Singh, claiming to be a similarly dismissed police constable filed O.A. No. 753 of 1989 in the Central Administrative Tribunal praying for reinstatement in service and all consequential benefits on the ground that his case and claim is similar to that of the police constables who had succeeded in the earlier rounds of litigation. The Tribunal has rejected the petitioner's application on the ground that it is highly belated and there is no cogent explanation for the inordinate delay of twenty-two years in filing the application on 13-3-1989 after termination of the petitioner's service in 1967.
8. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that behalf. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for 14 the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed...."
18. Further, the Hon‟ble Supreme Court in the case of Karnataka Power Corporation Ltd. through its Chairman and Managing Director and another vs. K.Thangappan and anr., 2006 (4) SCC 322 has held as under:
"5. The factual position as noted above clearly shows that for nearly 2 decades the respondent No.1- workman had remained silent. As rightly pointed out by learned counsel for the appellants even in the representations made in 1997 and 1998 there was no reference to the representations claimed to have been made in 1982 and/or 1989. Even if that would have been made, there was considerable delay even in making the representations. There is no dispute that mere making of representations cannot justify a belated approach.
6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably."
19. We have also examined the judgment of the Hon‟ble High Court of Himachal Pradesh in Hemant Kumar's case (supra) relied upon by the applicant and found the facts of the case to be different 15 from the present case. In the case of Hemant Kumar (supra), the petitioner, who was eligible for taking the test, was not permitted to take the test on the ground that he had been visited with the penalty, while in the present OA, the applicant had never applied for taking the test and hence, he does not stand on the same footing. The respondents have been able to show that he made first claim after he had crossed the eligibility age of 40 years for inclusion in Promotion List „A‟. Hence, in view of the circumstances of this OA and the facts being found distinguished, the applicant cannot get the benefits of Hemant Kumar‟s case (supra). Also, in view of the fact that the applicant has agitated his claim after an unexplained delay and in the light of the judgments of the Hon‟ble Supreme Court cited hereinabove, we do not find any merit in the OA and the same is accordingly dismissed. No order as to costs.
(Nita Chowdhury) (V. Ajay Kumar) Member (A) Member (J) /lg/