Central Administrative Tribunal - Delhi
Virendra Singh vs Govt. Of Nctd on 18 July, 2023
1 OA No.3662/2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3662/2016
Order reserved on: 12.04.2023
Order pronounced on: 18.07.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Virendra Singh, Aged 29 years,
S/o Shri Balbir Singh,
R/o V.P. Hingwara Tehsil Tijra Distt.
Alwar Rajasthan-301211.
....Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
1. Delhi Police
Through Commissioner of Police,
Police head quarter ITO,
New Delhi.
2. Union of India
Through Home Secretary,
Ministry of Home Affairs,
New Delhi.
... Respondents
(By Advocate: Mr. Puneet Rathi for Ms. Rashmi Chopra)
2 OA No.3662/2016
ORDER
By Hon'ble Manish Garg, Member (J) In the present OA, the applicant is seeking the following reliefs:
"a) Quash the order No.2175 R.Cell (S.I.)?(D.A.-I)/NPL Dated New Delhi 11.05.2016 issued by the Addl. Deputy Commissioner of Police, Recruitment Cell, NPL, Delhi.
b) Issue a direction to the respondents to consider him for the post of S.I.
c) Pass such further order/orders or directions as this Hon‟ble Tribunal may deem fit and proper in the interest of justice."
2. Brief facts of the case, as stated by learned counsel for the applicant, are enumerated below:-
2.1 The applicant was shortlisted for recruitment to the post of SI (Exe.) Male/Female in Delhi Police-2014. Therefore, he was directed to report to the Recruitment Cell, New Police Lines, Kingsway Camp, Delhi-110009 on 15.10.2015 vide R.Cell Notice dated 29.09.2015.
2.2 The applicant sent an application dated 14.10.2015 to the Recruitment Cell, requesting to extend the training and allow him to join the next consecutive batch as he was the only care taker of his mother. He also attached all the relevant medical documents of his mother‟s treatment.3 OA No.3662/2016
2.3 On 01.03.2016 he was served with a show cause notice from Recruitment Cell seeking reason as to why his candidature shall not be cancelled.
2.4 Applicant made a representation on 21.03.2016 requesting the competent authority to allow him to join the next batch for training on the grounds of ill health of his mother.
2.5 On 31.03.2016 applicant was again directed to appear in person before DCP/Recruitment Cell, NPL, Kingsway Camp, New Delhi. He appeared before DCP/Recruitment Cell on 07.04.2016 and apprised him the health condition of his mother and his interest to join the post.
2.6 However, vide Office Order dated 11.05.2016 the candidature of the applicant was cancelled. He made representations on 18.05.2016 and 31.05.2016 to DCP/Recruitment Cell. He also made representations to respondents No.1 and 2 but to no avail. Hence this OA.
2.7 He drew reference to RTI information inter-alia to the effect that the following candidates have been given extension for joining training with next batch for the post of Constable (Exe.) Male:4 OA No.3662/2016
Sl. Name Post Year/ Period of Ext. Reason of No. Batch Extension of Rectt.
1 Ankit Const. 2013 With next His mother is
batch suffering from
Tuberculosis
2 Bobby Kumar Const. 2013 With next He had met
batch with an
accident and
admitted in
Hospital.
3 Jai Kishan Const. 2013 With next His agreement
Dabi batch form was not
signed by 1st
Class
Magistrate till
last date of
joining.
4 Ram Niwash Const. 2013 With next He was
batch suffering RSA
lower back
injury.
5 Deepak Const. 2013 With next His hand was
Sharma batch fractured.
2.8 Learned counsel for the applicant also drew attention to information sought under RTI Act, 2005 regarding extension given to candidates of various posts during the year 2013 to 2016, which reads as under:
"Subject:- Seeking information under the Right to Information Act-2005.
With reference to your Online RTI application dated 13.01.2017 bearing Registration No. DEPOL/R/2017/ 50090/1, received through RTI Web Portal, on the subject cited above. On scrutiny of RTI application and on the basis of the report received from concerned branch, the information pertaining to this office is as under:-5 OA No.3662/2016
Point No. Reply
1& 2 No such record is maintained in this office. However,
as per available record, the following candidates of various post were granted extension for joining the training during the year as mentioned against each:-
Year Name of Post No. of Candidate 2013 Ct. (Exe.) Male 25 2014 SI/Male 01 W/SI 03 W/HC(Min.) C.G. 01 2015 SI (Exe.) Male 02 W/SI/Exe. 04 2016 SI (Exe.) Male 03 W/SI (Exe.) 01 Ct. (Exe.) 05 Sd/-
Public Information Officer cum Deputy Commissioner of Police Establishment PHQ: Delhi.
2.9 Despite the grant of extension to the aforementioned candidates and reasons thereto, the applicant has been discriminated against and again an Office Order dated 04.11.2016 to the following effect was passed. He further referred to OM dated 06.06.1978 issued by GOI, which reads as under:-
"New Delhi, the 6th June, 1979 OFFICE MEMORANDUM Subject:- Candidates recommended by the UPSC for appointment to Central Civil Services and the post - delay in joining - revival of offers of appointment after their cancellation - determination of seniority.
The undersigned is directed to refer to the general principles of seniority contained in Ministry of Home Affairs‟ O.M.No.9/11/55-RPS dated 22nd December, 1959 and to say that relative seniority of direct recruits 6 OA No.3662/2016 appointed on the recommendations of the UPSC or any other authority is determined by the order of merit in which they are selected for such appointment, the persons appointed as result of an earlier selection being placed above those appointed as result of the subsequent selection. It has come to the notice of the Government that in certain cases, the candidates recommended by them for appointment take long time to join and there have also been cases where offers of appointment were revived by Departments after they had been cancelled and in spite of the long delay in joining the candidates were allowed the benefit of seniority on the basis of their initial selection. The question whether in such cases it would not be desirable to depress the seniority of the candidates who are appointed on the result of the selections by interviews/examination was considered by the Government in consultation with the UPSC and it has been decided that the following procedure may be adopted now. This procedure will be applicable both in case of (a) selection through interview and (b) examinations.
(i) In the offers of appointment issued by different Ministries/Departments, it should be clearly indicated that the offer would lapse if the candidates did not join within a specified period not exceeding two or three months.
(ii) If, however, within the period stipulated, a request is received from the candidates for extension of time, if may be considered by the Ministries/Departments and if they are satisfied, an extension for a limited period may be granted but the total period granted including the extension during which the offer of appointment will be kept open, should not exceed a period of nine months. The candidates who join within the above period of nine months will have their seniority fixed under the seniority rules applicable to the service/post concerned to which they are appointed, without any depression of seniority.
(iii) If, even after the extension(s) if any granted by the Ministry/Departments, a candidates does not join within the stipulated time (which shall not exceed a period of nine months), the order of appointment should lapse.
(iv) An offer of appointment which has lapsed, should not ordinarily be revived later, except in exceptional circumstances and on grounds of public interest. The Commission should in all cases be consulted before such offers are revived.
(v) In a case where after the lapsing of the offer, the offer is revived in consultation with the Union Public Service Commission as mentioned in sub-para (iv) above, the seniority of the candidates concerned would be fixed below those who have already joined the posts concerned within the prescribed period of nine months; and if the candidate joins before the candidates of the next selection/examination join, he should be placed below all others of his batch. If however, the candidates joins after 7 OA No.3662/2016 some or all the candidates of the next selection/examination have joined, he should be:
(a) In cases of selection through interview, placed at the bottom of all the candidates of the next batch.
(b) in the case of examination, allotted to the next years batch and placed at the bottom. The Ministry of Finance are requested to bring the above instructions to the notice of all concerned.
Sd/-
( N. RANGARAJAN ) Deputy Secy. to the Govt. of India
3. On the other hand, respondents vehemently opposed the claim of the applicant and in the reply filed on behalf of respondents contended that this OA is not maintainable and liable to be dismissed on the ground of suppression of facts.
3.1 Firstly, the applicant deliberately did not disclose that he has been heard in person. His representations dated 31.05.2016 and 14.09.2016 were decided on 15.06.2016 and 04.11.2016, respectively and the same was accordingly informed to him.
3.2 Secondly, the applicant has not impugned the above orders/decisions.
3.3 It has been further submitted that as per Sub-Point (iv) of para 1 of OM dated 06.06.1978 (supra), "An offer of appointment which has lapsed, should not ordinarily be revived later, except in exceptional circumstances and on grounds of public interest. The Commission should in all cases be consulted before such offers are revived."
8 OA No.3662/20163.4 It is pertinent to mention here that applicant in the Attestation Form filed on 25.05.2015 in Col. No.11 mentioned that he is working as Constable (Exe.) in Delhi Police from 17.04.2009 till date (i.e. 25.05.2015). In view of the above conspectus, it is submitted that the OA is not maintainable and is liable to be rejected.
4. Having heard the learned counsel for the parties at length as well as carefully gone through the records of the case, we would now analyse the facts and law on the subject.
5. ANALYSIS:
5.1 Section 5, 12, 147 and 148 of Delhi Police Act, read as under:-
5. Constitution of police force.- Subject to the provisions of this Act,-
(a) the Delhi police shall consist of such number in the several ranks and have such organization and such powers, functions and duties as the Administrator may, by general or special order, determine; and
(b) the recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi police shall be such as may be prescribed:
Provided that nothing in clause (b) shall apply to the recruitment to, and the pay, allowances and other conditions of service of the members of the Indian Police Service or the Delhi, Andaman and Nicobar Islands Police Service.9 OA No.3662/2016
Section 12 of Delhi Police Act, read as under:-
12. Appointment of subordinate ranks.- Subject to such general or special orders in writing as' the Administrator may make in this behalf,-
(a) Inspectors of Police may be appointed by the Additional Commissioner of Police; and
(b) Sub- Inspectors of Police and other officers of subordinate rank may be appointed by the Deputy Commissioners of Police, Additional Deputy Commissioners of Police, Principal of the Police Training College or of the Police Training School, or any other police officer of equivalent rank.
147. Power to make rules.-
(1) The Administrator may make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi police under clause (b) of section 5;
(b) the manner of publication under sub- section (2) of section 17, by the Commissioner of Police, of the names of special police officers appointed under that section;
(c) awarding of any of the punishments referred to in sub-
section (1) or sub- section (2) of section 21 to any police officer of subordinate rank;
10 OA No.3662/2016(d) procedure for awarding punishments under section 22;
(e) form of Discharge Certificate under sub- section (8) of section 25;
(f) determination of the cost of employing additional police under sub- section (2) of section 38;
(g) manner of taking measurements and photographs under section 55 of a person against whom an order has been made under section 46, section 47 or section 48;
(h) manner of constituting Defence Societies under sub- section (1) of section 58;
(i) form of receipt to be given in respect of any article detained under section 62;
(j) the authority to whose satisfaction claims are to be established under sub- section (2) of section 69 and the form and manner in which claims may be made under that sub- section, the procedure for dealing with such claims and all other matters connected therewith under sub- section (3) of that section;
(k) payment to any police officer or division among two or more police officers the whole or any portion of any reward, forfeiture or penalty, under the proviso to section 132;
(1) any other matter which has to be, or may be, prescribed, or, provided for by rules, under this Act.
148. Notification of rules and regulations in the Official Gazette and laying of rules and regulations.-
(1) Every rule and regulation made under this Act shall be made by notification in the Official Gazette.
11 OA No.3662/2016(2) Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, as the case may be, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.
(3) Every rule and regulation made under this Act shall also be laid before the Metropolitan Council of Delhi.
The Delhi Police (Appointment & Recruitment) Rules, 1980 , Rule 3, 4 and Rule 26 reads as under:-
3. Definitions. - (i) "Appointing Authority" in relation to Inspector of Police means the Additional Commissioner of Police and in relation to the subordinate police officers below the rank of Inspector means the Deputy Commissioner of Police including the Additional Deputy Commissioner of Police, Principal/P.T.S. or any other officer or equal rank.
(ii) Competent authority means the Commissioner of Police or any other police officer specially authored by him under these rules to appoint a police officer of subordinate rank of Delhi Police.
(ii-a) "Employees" means non-gazetted employees of the Delhi Police Force.
(iii) Probation means of period of trial of a person appointed temporarily or in an officiating capacity against temporary or permanent post of a police of subordinate rank.
12 OA No.3662/20164. General. - (i) Appointing authorities-The following authorities shall be competent to make appointment to various subordinate ranks of Delhi Police-
Authority to whom
The
Class of Police the power of
extent of
Officers appointment is
delegation
delegated
Full powers
subject to
(i) Inspector Add. C.P. the rules
framed
hereunder.
Sub-ins
(ii) (i) DCP Do
pr.
(ii) Add.DCP
(iii) Principal/PTS
Any other
officer of
(iv)
equivalent
rank.
(iii) ASI Do Do
(iv) H.C. Do Do
(v) Constables Do Do
7. Recruitment of Sub-inspectors (Executive). - Fifty per cent of vacancies in the rank of Sub-Inspector (Executive) shall be filled by direct recruitment and 50% by promotion out of 50% direct quota, 10% of the post shall be filled by limited department competitive tests from among st constables, Head constables, and Asset. Sub-Inspectors with minimum 5 years of service who shall not be more than 35 years (40 years for Scheduled Castes/Scheduled Tribes candidates) of age on the first day of January of the year if the examination is held in the first half of the year and on the first day of July of the year if the examination is held in the later half of the year. The educational qualifications and other physical standards for the test shall be the same as prescribed in the Rules for direct recruitment's to such posts. The unfilled vacancies reserved for the departmental candidates will be carried forward for 3 recruitment years as in the case of vacancies for the scheduled tribe candidate where after the unfilled vacancies will be filed by direct recruitment.
13 OA No.3662/2016Education, physical and other standards for the post of Sub- Inspector (direct recruited) shall be as under:
Relax able by 5 years only for Scheduled (1) Age. 20-25 Castes/Scheduled Tribes & departmental candidates.
Relax able by 5 centimetres only for (2) Height... 170 centimetres residents of hill areas e.g. Gurukhas, Garhwalis.
Relax able by 5 81 centimetres to (3) Chest... centimetres for residents 85 centimetres.
of hill areas.
[Note- "The relaxation in physical standards once granted at the time of initial appointments in Delhi Police will hold good till the individual concerned remains in Delhi Police."] Degree from a Educational (4) recognized No relaxation Qualification University.
Sound health free from defect/deformity Physical (5) disease, both eyes No relaxation standard vision 6/12 (Without glasses, No Colour blindness.) (1) For Scheduled Castes, Scheduled Tribes & Ex-Servicemen etc., as per order issued by (6) Reservation government from time to time.
(2) For departmental candidates 10% of vacancies.
26. Other conditions of service and residuary mattes. -
(1) The general conditions of service of all police officers of subordinate rank, such as pay, pension, leave, joining time travelling allowance, etc. shall be governed by the rules framed in this behalf, under the Delhi Police Act, 1978 or 14 OA No.3662/2016 where such rules are silent, by the rules/orders as applicable to other Central Govt, civil servants as issued by the Govt, of India from time to time as may be expedient.
(2) In regard to matters not specifically covered by these Rules the police officers of subordinate rank shall be governed by the rules, regulations and other orders applicable to the corresponding grades of civilian employees serving under the Govt, of India.
(3) Service records of police employees shall be maintained as per details to be specified in the Delhi Police Manual by the Commissioner of Police.
The Central Civil Services (Joining Time) Rules, 1979, Rule 8 contemplates as under-
"8. Miscellaneous Where any Ministry/Department of Government of India is satisfied that the operation of any of these rules causes undue hardship to any particular case that Ministry or Department of the Government of India may by order, for reasons to be recorded in writing, dispense with or relax the requirement of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that no such order shall be made except with the concurrence of the Ministry of Home Affairs, Department of Personnel and Administrative Reforms.
9. If any doubt arises as to the interpretation of these rules, it shall be referred to the Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms.
10. All rules and instructions on the subject of joining time in force immediately before commencement of these rules and applicable to Government servants to whom these rules apply, are hereby repealed."
Extension in joining time is subject to guidelines contained in Department of Personnel and Training‟s Office Memorandum No. 35015/2/93-Estt.(D) dated 09.08.1995. As per which an offer of appointment lapses automatically after expiry of six months from the date of issue of offer of appointment. The guidelines provide for extension in joining time on justified grounds. As such extension in joining time is not a matter of right. Only justified cases supported with documentary proof can be considered for grant of extension in joining time.
15 OA No.3662/2016Further, it has been clarified that under Rule 4 that for appointment to posts under the Central Government on the results of a competitive examination and or interview open to Government servants and others, the Central Government employees and permanent/provisionally permanent State Government employees will be entitled to joining time under these rules, if such Government servants opt for having their past service in the Central Government or State Government counted for all purposes in the Central Government.
[Rule 4 and Notification dated 27th March, 2015] 5.2 In the present case the stage of giving offer of appointment had not been reached because before the said date, the applicant submitted a written request seeking extension for joining on medical grounds of her mother along with supporting documents.
5.3 As the OM dated 06.06.1978 contemplates that the offer of appointment should stipulate a clause regarding lapse of offer of appointment on not joining, such situation had not arisen. Furthermore, extension in joining time is subject to guidelines contained in Department of Personnel and Training‟s Office Memorandum No. 35015/2/93-Estt.(D) dated 09.08.1995, according to which an offer of appointment lapses automatically after expiry of six months from the date of issue of offer of appointment. The guidelines provide for extension in joining time on justified grounds. As such extension in joining time is not a matter of right. Only in justified cases, supported with documentary proof, grant of extension in joining time can be considered.
16 OA No.3662/20165.4 It is felt that the decision arrived at in the impugned order is not based on an objective assessment. The case of the applicant cannot be defeated on technical pleas raised by the respondents. The decision has to be taken by the Competent Authority.
5.5 It is also seen from the records that since there was no offer of appointment as contemplated under the extant rules, the decision to relax or not to extend per se is not only beyond the competence and jurisdiction of Additional DCP. The Order itself is non-speaking as it has been passed without assigning any reason.
6. CONCLUSION:
6.1 In the conspectus of all the facts brought out above, we quash and set aside Office Order No.2175/R.Cell(S.I(DA-
I)/NPL dated 11.05.2016, directing the respondents to put up the case to the Competent Authority, who shall pass a reasoned and speaking order on the pleas of the applicant for extension of joining time, within a span of eight weeks from the date of receipt of a certified copy of this order. Thereafter, in case the pleas of the applicant are found to be acceptable, then he would be offered appointment to the post of Sub-
Inspector, if he is otherwise found eligible and suitable. He 17 OA No.3662/2016 shall also be given consequential service benefits on a notional basis with reference to his next junior in the Select List.
6.2 The OA stands disposed of in the above terms.
7. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) „SD‟