Central Administrative Tribunal - Kolkata
S K Karmakar vs Police on 13 February, 2023
1 O.A/167/2012
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
O.A/167/2012 (AN) Date of Order: 13.02.2023
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
1. Sri S.K. Karmakar
2. Shri K. Bhoominathan
3. Shri A.K. Biswas
4. Shri G.S. Yadav
5. Shri Ramesh Chander Singh
6. Shri Jawahar Singh
7. Shri Niranjan Ojha
8. Shri Om Prakash Rai
9. Shri P. Ramraj
10.Shri L.B. Yadav
11.Shri B. Someshwar Rao
12.Shri C. Thomas Kutty
13.Shri Gurmeet Singh
14 Shri Selvster Tete
15.Shri Poojan Prasad
16 Shri Ashok Kumar
.........Applicants
- V ERSUS -
1. The Union of India,
Through Secretary to the Ministry of Home,
Affairs, Govt. of India, North Block,
New Delhi - 110 001;
2. The Lieutenant Governor,
Andaman and Nicobar Islands,
Port Blair;
3. The Director General of Police,
A&N Police Department,
Police Head Quarter,
Atlanta Point, Port Blair,
A&N Islands;
4. The Inspector General of Police,
Police Head Quarters, Port Blair;
5. The Deputy Inspector General of Police
(L&O), A&N Police, Port Blair
6. The Deputy Inspector General of Police
(HQ), A & N Police, Port Blair, A&N Islands;
2 O.A/167/2012
7. The Superintendent of Police (HQ),
A&N Police, A&N Islands, Port Blair
8. Shri Joju K.
9. Shri D. Jaddishwar Rao
10. Shri Rahul
11. Shri K. Binoj
12. Shri Mahesh Kumar
13. Shri Stalin N.S.
14. Shri Rizwan Hassan
15. Shri Abdul Sajid
16. Shri Ramesh Prasad
17. Shri S. Vishal
18. Shri Sanjay Kumar
19. Shri Abita Bachan
20. Shri Shaba Rahman
21. Shri P.K. Abdul Arif
22. Shri K.P. Abdul Gafoor
23. Shri Sahil Shamsuddin
24. Shri Barun Adhikari
25. Shri Rub Kumar Mazumdar,
26. Shri Vikash Singh
27. Shri Pritam Behari
28. Jyoti Chhatwal
29. T. Hemavathi
30. Shri Kripa Shankar Tiwari
31. Shri Arun Kumar Singh
............Respondents
For The Applicant(s): Ms. A. Nag, counsel
For The Respondent(s): Mr. D. Chowdhury, counsel
O R D E R (O R A L)
Per: Jayesh V. Bhairavia Member (J):
The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:-
"i) Leave be granted to move the application jointly under rule 4 (5) (a) of the Central Administrative Tribunal (Procedure) Rules, 1987.
ii. An order quashing the standing order dated 24/02/2006 on the ground that the same is not approved by the Lt. Governor / State Government as per the requirement of the Police Act 1961 and the same is against the provisions chapter 2 of the Police Manual 1963.
iii) An order quashing the appointments of the private respondents dated 21/06/2006 which is in violation to the provisions of Police manual 1963 and Police Act 1961 or in the alternative the applicants be declared senior to the private respondents in all respects.
3 O.A/167/2012 iv. An order quashing the appointment order dated 30.11.2012 whereby the respondent authorities appointed three persons (one of the private respondents) to the post of Inspector.
V. An order directing the respondent authorities to grant all consequential and monitory benefits to the applicants after antedating the promotion of the applicants to the post of Sub-Inspector.
vi. An order directing the respondent authorities to act in accordance with law.
vii. An Order to issue directing the respondents to produce the records of the case before this Hon'ble Tribunal so that conscious-able justice may be done.
viii. Such other or further order direction or directions, as Your Lordships deem fit and proper in the interest of justice."
2. In the instant O.A, brief facts of the case as submitted by Ld. counsel for the applicants are that, 2.1 Applicants were initially appointed as Constables and after getting promotion step by step, they reached to the posts of Sub-Inspector. On 21.06.2006 the private respondents were appointed to the posts of Sub- Inspector through direct recruitment. They were appointed by following a standing order purported to have been issued on 24.02.2006. The applicants had no knowledge about the validity of the standing order as they presumed that the standing order would have been approved by the Lt. Governor. In October 2012, the applicants came to know that the standing order dated 24.02.2006 is not approved by the competent authortiy. The applicants also came to know about the fact that the standing order dated 24.02.2006 is void when one Mr. Abdul Manaf - an Assistant Sub-Inspector of the Police department challenged the standing order of 2008.
2.2 Immediately, applicants preferred representations to the respondent authorities on 6.11.2012 & 19.11.2012 respectively. However, as no action was taken on their representations, the applicants sought information under RTI to obtain the documents specially the standing order dated 24.02.2006 and the same was made available on 27.11.2012. As the appointments were apparently illegal, arbitrary and malafide, the same is challenged by way of 4 O.A/167/2012 the instant application. The basic intention of the applicants is the seniority. The private respondents have been appointed in violation to the provisions of the Police Manual 1963 so far as Chapter-II and age criteria are concerned. Hence this application.
3. The arguments advanced by the Ld counsel for the applicants are as under:
3.1. That, the private respondents have been appointed in terms of the standing order dated 24.02.2006 of the authorities. However, the said standing order was never approved by the Lt. Governor whereas it was mandatory as per Section 12 of the Police Act, 1961.
3.2. Rule 2.2 of Chapter 2 of Police Manual, 2003 has also been violated as in terms of the said Rule, post of Sub Inspector has to be filled up by promotion and only in case of non- availability of candidates, it can be filled up by way of direct recruitment. The applicants were very much available and qualified at that relevant point of time and therefore the authorities ought not to have filled up the posts by way of direct recruitment. 3.3. Though the appointment of the private respondents itself is illegal, the applicants are claiming seniority over and above the private respondents as admittedly there is no approval by the Lt. Governor in terms of Section 12 of Police Act, 1963.
4. On the other hand, Respondents have filed written reply denying the claim of the applicants.
Learned Counsel for the respondents mainly submitted as under:-
4. 1. A combined recruitment drive was conducted to fill up 23 vacancies of Sub Inspector of Police along with various posts of Indian Reserve Battalion, Fire Brigade and Police Radio Organization. Vacancies were increased to 26 subsequently.
5 O.A/167/2012 4.2. After the selection, final result was declared on 09.05.2006 and 24 candidates were selected for the posts of Sub Inspector (Executive). 4.3. That in terms of Rule 2.2 (a) of the A & N Police Manual, 1963, vacancies in the ranks of upper subordinates are normally filled up by promotion but there is no bar to fill up the same either by way of direct recruitment or by deputation.
Further, Rule 2.3 of A & N Police Manual, 1963 also envisages the element of direct recruitment to the post of Sub Inspector of Police. It also speaks about the required educational qualification of a degree. The provision for filling up 50% vacancies of Sub Inspector direct recruitment came into force in the year 1971 with the approval of the A & N Administration and the first direct recruitment was made in 1973. Therefore, the contentions of the applicants are devoid of any merit and the same are liable to be rejected (Anneuxre R/5 refer).
4.4. Authorities are having power to fill up the posts as per demand. In 1971 itself decision was taken to fill up 50% of the vacancies of Sub Inspector by direct recruitment.
4.5. It is admitted that no approval was obtained from the Lieutenant Governor and practice was followed only after the decision of the Honourable High Court in WPCT No. 251 of 2009. In terms of Rule 5.4 (b) of A & N Police Manual, 1963, no person shall be eligible for promotion to the rank of Sub Inspector and above unless he has passed matriculation or equivalent examination. In the year 1971, it was felt imperative to fill up atleast 50% vacancies of Sub Inspector of Police by direct recruitment. Therefore, a proposal in this regard was sent to the Chief Secretary, A & N Administration, Port Blair for approval vide Memorandum No. 5023/3/2/71 dated 03/07/1971 and the said proposal was approved by the A & N Administration vide Memorandum No. 9-24/71-Home dated 24/07/1971. From 1971 onwards, 6 O.A/167/2012 50% vacancies of Sub Inspector of Police were being filled up by direct recruitment and the remaining 50% vacancies by promotion. 4.6 In exercise of powers conferred under Rule 2.2 (a) of A & N Police Manual, 1963, a Standing Order vide No. 2544 dated 27/03/2000 was also issued by the then Inspector General of Police, A & N Islands for filling up the 50% posts of Sub Inspector of Police by direct recruitment and the remaining 50% by promotion among the Assistant Sub Inspectors having minimum 5 years of service and requirement of passing a course of training for Sub Inspector from a Police Training College. Such practice i.e. filing of 50% posts by direct recruitment and the remaining 50% posts by promotion was continued till 29/08/2011 i.e. till issuance of the notification of Recruitment Rules for the post of Sub Inspector of Police (Executive). The contentions of the applicants that they came to know only in October, 2012 that the Standing Order dated 24/02/2006 was not approved by the Lt. Governor is nothing but an afterthought in order to justify the huge delay in filing the instant application. The mode of recruitment and the category from which the recruitment to a service should be made are exclusively within the domain of the executive and are the matters of policy decision falling exclusively within the purview of the executive. The decision for filling up 50% posts by direct recruitment was taken long back in the year 1971 and the same has been approved by the A & N Administration.
Moreover, the practice of seeking approval for the Standing Orders from the A & N Administration came into existence only after the judgment/order dated 16/03/2010 passed by the Hon'ble High Court of Calcutta, Circuit Bench at Port Blair in WPCT No. 251 of 2009-(Shri Paritosh Malo -Vs- Union of India & others). It is pertinent to mention here that although the Hon'ble High Court had held that approval of the U.T Administration is required in terms of Section 12 of the Police Act, 1861 but the Hon'ble Court did not set aside any standing order issued in the past.
7 O.A/167/2012 Therefore, there is no merit in such contentions of the applicants and the same are liable to be rejected (Annexures R/6 & R/7 respectively). 4.7 That direct recruitment in respect of the private respondents was made in the year 2006 through due selection process and the applicants were well aware of the said recruitment process. Private respondents have been appointed through proper selection process and therefore, their appointment cannot be disturbed at this stage now, after lapse of more than six years, the applicants cannot challenge the said recruitment process, which attained its finality.
4.8. Respondents would rely upon the decision rendered by the Hon'ble High Court of Calcutta, Circuit Bench at Port Blair vide its judgement dated 10/04/2013 in WPCT No. 106 of 2013-(Shri K. Kumar -Vs- The Union of India & Others) wherein it was held that:-
"It well settled principle law that 'delay defeats equity' and a settled position cannot be unsettled after a distant point of time, even if it may found on scrutiny of the fact that some wrong was done. The petitioner should have been vigilant. In view of silence maintained by the petitioner, the authorities proceeded with the matter and the situation has changed substantially. It is essential that any one who feels aggrieved by denial of promotion should approach the Court as early as possible otherwise it would create administrative complications and difficulties. It clearly shows that the past recruitment refers to the period of 2006 and the petitioner by maintaining silence and not having approached any Court of law allowed such recruitment procedure to continue thereby attained finality."
Ld. counsel for the respondents vehemently contends that the Original application is barred by limitation as it was filed after a period of 6 (six) years of the date of cause of action.
5. Heard Ld. counsel for the parties. Perused the materials on record.
6. It emerges from the aforesaid discussions that the applicants have missed their bus by not challenging the appointment of the private respondents at the relevant point of time. If for argument sake, limitation point is kept aside and it is presumed that the applicants' claim is genuine, appointments of the private respondents and their seniority positions cannot 8 O.A/167/2012 be disturbed at such a distant date when the whole process was finalized after completion of due procedures long back. Hon'ble Supreme Court also reprimanded the practice of disturbing seniority position and appointments at a distant date in a catena of its judgments.
We find sufficient force in the submissions made by Learned Counsel for the respondents that when the appointments were finalized long back the applicants cannot claim for any change at this distant date.
7. In view of the above, the O.A. lacks merit and accordingly stands dismissed. No costs.
Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member ss/sb