Central Administrative Tribunal - Delhi
Si Neeraj Kumar No. D-3557 vs Gnct Of Delhi Through on 21 April, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3398/2010
With
OA-3409/2010
New Delhi this the 21st day of April, 2011.
Honble Mr. L.K. Joshi, Vice-Chairman (A)
Honble Mrs. Meera Chhibber, Member (J)
OA-3398/2010
SI Neeraj Kumar No. D-3557,
PIS No. 16960023
Posted at Lodhi Colony, Delhi.
S/o Sh. Radhey Shyam,
R/o T-806/K-4, 2nd Floor,
Sukhdev Market Kotla,
Mubarak Pur,
New Delhi-3. . Applicant
OA-3409/2010
HC Satish Kumar, No. 559/SB,
PIS No. 28862955,
S/o late Sh. K.R. Sharma,
R/o Qtr. No. 1 ASI Type Traffic Police Line,
Teen Murti,
New Delhi-11. . Applicant
By Advocate: Sh. Sourabh Ahuja in both the OAs.
Versus
1. GNCT of Delhi through
Lt. Governor,
Govt. of NCT of Delhi,
Raj Niwas, Delhi.
2. Commissioner of Police,
Police Headquarters,
I.P. Estate,
MSO Building,
New Delhi.
3. Deputy Commissioner of Police,
(Establishment), PHQ,
IP Estate,
MSO Building,
New Delhi. .... Respondents
By Advocate: Mrs. Sumedha Sharma in both the OAs.
O R D E R
Mrs. Meera Chhibber, Member (J) Two O.As have been filed by SI Neeraj Kumar and HC Satish Kumar for quashing the impugned order whereby their claim for out of turn promotion has been rejected after review and for seeking a direction to the respondents to promote the applicants on out of turn basis to the rank of Inspector and ASI w.e.f. 24.07.2007 (the date when their teammates were granted out of turn promotion) with all consequential benefits including seniority, difference in pay, promotion etc.
2. Since the facts, issue involved and counsel for the parties are same, we are disposing both the OAs by a common judgment with the consent of the parties. For the sake of narrating facts, OA-3398/2010 is being taken as a lead case.
3. The brief facts as narrated by the applicant are that a team of 8 persons was constituted by Delhi Police on 25.04.2006 to nab Sher Singh Rana killer of Smt. Phoolan Devi. The team consisted of :
1. SI Neeraj Kumar
2. ASI Devender Kumar
3. HC Satish Kumar
4. Ct. Surender Kumar
5. HC Satyavir Singh was sent to Kolkata while 3 others were sent to Roorkee Exchange.
4. Their names were recommended in June 2006 for out of turn promotion to the next rank by the Deputy Commissioner of Police Special Cell (page-26) as they successfully nabbed Sher Singh Rana, killer of Smt. Phoolan Devi, the then M.P. vide order dated 15.12.2006. All the 5 members of the team were given cash reward (page-38). Applicants name figure at Sl. No. 38 and 40. However, out of turn promotion was not granted to them so the Deputy Commissioner of Police again took up the case for re-examining the matter (page-41). Finally the names of both the applicants viz SI Neeraj Kumar and HC Satish Kumar alone were approved for out of turn promotion to the rank of Inspector and ASI respectively in April 2007 (page-108) but actual promotion was not given.
5. To the utter dismay of applicants respondents issued an order on 04.05.2007 whereby order dated 15.12.2006 granting cash reward to SI Neeraj Kumar, HC Satish Kumar and Constable Surender Kumar was cancelled (page-57). However, Out of turn ad hoc promotion was granted to Constable Surender Kumar only vide order dated 24.07.2007 (page-59). The respondents rejected the claim for out of turn promotion with regard to ASI Devender Kumar and HC Satyabir Singh vide order dated 17.05.2007 (page-58).
6. Both the persons whose case for out of turn promotion was rejected approached the Tribunal by filing OA No. 1512/2007 by ASI Devender Kumar and O.A.No.1513/2007 by HC Satyavir Singh. Both the O.As were decided by a common judgment dated 18.09.2008 (pages 77 to 90). The O.A. filed by ASI Devender Kumar was dismissed while that of Head Constable Satyavir Singh was allowed. Respondents were directed to give out of turn promotion to H.C. Satyavir Singh.
7. It is further stated by the applicant that ASI Devender Kumar carried the matter to the Honble High Court by filing Writ Petition No. 8841/2008 whereupon High Court directed the respondents to accord benefit of out of turn promotion to the petitioner on the post of Sub-Inspector on ad hoc basis with effect from the date when three other members of the Kolkatta team namely, SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar were granted ad hoc promotions.
8. In view of above ASI Davender Kumar has been given out of turn promotion w.e.f. 24.07.2007 vide order dated 21.12.2009. Similarly the judgment with regard to HC Satyavir Singh was affirmed by the Honble High Court in its judgment dated 17.01.2011 in Writ Petition No. 8952/2009 filed by Govt. of NCT of Delhi. Accordingly HC Satyavir Singh was also granted out of turn promotion vide order dated 03/11 copy taken on record.
9. In the meantime applicants, who were already approved for out of turn promotion but were not given the benefit of out of turn promotion gave representation for granting them out of turn promotion. Since no decision was conveyed to them, they also approached the Tribunal by filing O.A. No. 1233/2010. However, during the pendency of above O.A. instead of giving them out of turn promotion, respondents passed order dated 22.07.2010 (page-20) rejecting out of turn promotion to both the applicants by reviewing the earlier approval, therefore, OA-1233/2010 was withdrawn with liberty to challenge the order dated 22.07.2010.
10. It is in these circumstances that both the applicants have filed the present OAs challenging the order dated 22.07.2010 on the ground that once their names were approved for out of turn promotion, it could not have been reviewed and rejected by a subsequent committee, that too by observing that they had not shown any exemplary courage or velour displayed by the officers for which out of turn promotion can be given. Moreover when out of turn promotion has been given by the Court to 2 members of the team who were not even recommended by the earlier Committee and out of turn promotion has already been given to three members by the respondents themselves, there is no justification to deny the same to the applicants alone who were, indeed, recommended for out of turn promotion by the earlier Committee, already approved also by the then Commissioner of Police. They have thus submitted that they are being discriminated against, therefore, both the O.As. may be allowed.
11. Respondents have opposed the O.A. They have stated that on 08.08.2006, a citation for the grant of Out of Turn Promotion to the next higher rank was received from DCP/Spl. Cell (SB), Delhi in respect of the following officers/men for apprehending Sher Singh Rana, the killer of Smt. Phoolan Devi, the then Member of Parliament:-
1. SI (Exe.) Neeraj Kumar, No. D-3557 ( the Applicant in OA No.3398/2010)
2. ASI (Exe.) Devender Kumar, No. 536/SB
3. HC (Exe.) Satish Kumar, No. 376/SB, 559/SB (the Applicant in OA No.3409/2010)
4. HC (Exe.) Manoj Kumar, No. 1835/NE
5. HC (Exe.) Satyabir Singh, No. 316/SB
6. Ct. (Exe.) Surender Singh, No. 304/SB
7. Ct. (Exe.) Vinay Gopal, No. 274/SB
8. Ct. (Exe.) Surender Kumar, 443/SB The case of the applicant along with others was placed before the Incentive Committee constituted by the CP, Delhi, comprising of 1 Special Commissioner of Police, as Chairman, 02 Joint Commissioners of Police and 1 Dy. Commissioner of Police, as members in its meeting held on 4.12.2006. The Committee considered 33 cases/citations of 69 officials including the applicant for the grant of incentives. After considering the case of the applicant along with others, the Incentive Committee recommended the applicant and others for award of Asadharn Karya Puraskar. The recommendations of the Incentive Committee were approved by the Commissioner of Police, Delhi. Accordingly, all the above mentioned 8 police officials including the applicant, were awarded Asadharn Karya Puraskar with cash reward of Rs.5,000/- each vide this Headquarters UO No. 92140-240/CB-IV/PHQ dated 15.12.2006.
12. However, on 5.1.2007, the DCP / Special Cell (S.B.), Delhi sent the representations submitted by all the above mentioned police officials including the applicant, requesting therein for the grant of Out of Turn Promotion instead of Asadharan Karya Puraskar. Their representations were considered and the Commissioner of Police, Delhi ordered to place the matter before the Incentive Committee again. Accordingly, the matter was placed before the Incentive Committee. The Incentive Committee considered their cases in its meeting held on 24.4.2007 and also heard them in person for the details of the incident. All of them represented before the Incentive Committee that the team was responsible for nabbing the most notorious and elusive criminal, namely, Sher Singh Rana who had shot dead Smt. Phoolan Devi, MP (Lok Sabha) in broad day light in New Delhi and had managed to escape from the Central Jail Tihar on 17.02.2004. He was carrying a reward of Rs.50,000/- on his head declared by Delhi Police. Sher Singh Rana could be located and arrested after painstaking investigation and sustained efforts for six months. The Incentive Committee laid down the criteria and came to the conclusion that since ASI (Exe.) Devender Kumar and HC (Exe.) Satyavir Singh, No.316/SB were recently promoted on Out of Turn basis on 30.03.2006 and 24.3.2005 respectively as such both of them were not falling in the criteria fixed by the Incentive Committee for further out of turn promotion in its meeting held on 4.12.2006. As such, the Incentive Committee was of the view that the Asadharan Karya Puraskar with cash reward of Rs.5,000/- already awarded to them was adequate. However, keeping in view the painstaking investigation and role of the following police officials, the Incentive Committee recommended them for the grant of Out of Turn Promotion:-
SI (Exe.) Neeraj Kumar, No.D-3557 (the applicant) HC (Exe.) Satish Kumar, No.376/SB (the applicant) Const. Surender Kumar, No.443/SB
13. They have further admitted that the recommendations made by the Incentive Committee were approved by the then Commissioner of Police, Delhi. In view of above, the orders regarding grant of Asadharan Karya Puraskar in respect of SI Neeraj Kumar, No.D/3557 (the applicant), HC Satish Kumar, No.376/SB (the applicant) and Ct. Surender Kumar, No.443/SB was cancelled vide order dated 04.05.2007. Ct. Surender Kumar, No.443/SB was granted out of turn promotion to the next higher rank of Head Constable (Exe.) vide order dated 24.7.2007 as vacancies of OTP Quota were available in the rank of Head Constable (Exe.) at that time. They have further explained that ASI (Exe.) Devender Kumar was granted out of turn promotion to the rank of SI (Exe.) w.e.f. 24.07.2007 vide order dated 21.12.2009 pursuant to the directions given by the Honble High Court in its order dated 16.07.2009 in WP (C) No. 8841/2008 titled as ASI Devender Kumar Vs. GNCT of Delhi & Ors. As far as SI (Exe.) Neeraj Kumar, No.D/3557 (the applicant in OA No. 3398/2010) and HC (Exe.) Satish Kumar, No.376/SB (the applicant in OA No.3409/2010) are concerned, they could not be given out of turn promotion for want of vacancies of OTP quota in the rank of Inspr. (Exe.) and ASI (Exe.) respectively.
14. They have explained that as per Rule 19 (ii) of Delhi Police (Promotion & Confirmation) Rules, 1980 Out of Turn Promotion can be given to total 5% of the vacancies likely to fall vacant in the given year in a rank. There is no rule which permits issuing of out of turn promotion orders by the competent authority when posts do not exist. Hence, out of turn promotions recommended by an earlier Incentive Committee and approved by the then C.P. would confer no right on an individual when there were no vacancies existing in the rank to which the promotion was to be made. In these circumstances, orders of Commissioner of Police, Delhi cannot bind his successors for years, to grant out of turn promotion. In fact, the very nature of such orders is ipso facto defective and renders them infructuous. However, it was decided that all such cases where out of turn promotion were recommended by the Incentive Committees earlier and approved by the then C.P., Delhi but promotion could not be given for want of vacancies, should be reconsidered by the Incentive Committee afresh. Accordingly, the case of the applicant and others were put up on 21.12.2009 before the fresh Incentive Committee which in its meeting held on 10.05.2010, 20.05.2010 and 28.05.2010 did not find the applicants deserving for out of turn promotion. The recommendations of the Incentive Committee were approved by the Commissioner of Police, Delhi. In view of above, the applicants were informed by a reasoned and speaking U.O. No.37162/CB-IV/PHQ dated 22.07.2010 that on review their case for grant of out of turn promotion has been rejected. They have thus prayed that both the O.As may be dismissed.
15. We have heard both the counsel and perused the pleadings as well.
16. It is an admitted fact that a party of 5 persons was constituted by the respondents for nabbing Sher Singh Rana, who had killed Smt. Phoolan Devi, M.P. Lok Sabha in broad day light and had escaped from the Central Jail.
17. It is relevant to note that Dy. Commissioner of Police, Special Cell had recommended the entire team members for out of turn promotion by observing as follows:-
for displaying their dedication, sincerity, meticulous planning, developing every minute information so obtained, compiling the voluminous data, pitching and follow up which led to the successful operation in which the killer of Smt. Phoolan Devi, the then Member of Parliament, Sher Singh Rana was apprehended. The accused had escaped from the Tihar Jail considered to be most safe and secured. The entire operation required extreme wits, patience and perseverance on the part of the entire team because the manner in which the accused had escaped from Tihar Jail itself speaks of his sharp mind. Following the escape of Sher Singh Rana, the prestige and dignity of Delhi Police was at stake. Apprehending Sher Singh Rana was the biggest challenge posed which was taken up by the entire team knowing very well that it was similar to searching for a needle in a heap of sand. In this very successful operation, exemplary skills and strong work ethics wee shown by SI Neeraj Kumar, ASI Devender Kumar, HC Satish Kumar, HC Manoj Kumar, HC Satyavir Singh, Ct. Vinay Gopal, Ct. Surender and Ct. Surender Kumar which led to the apprehension of cunning minded Sher Singh Rana and also in the neutralization of conspiracy to eliminate the material witness Smt. Uma Kashyap in the murder case of Smt. Phoolan Devi.
18. Initially the Incentive Committee had recommended cash reward for the team but on reconsideration both the applicants and Constable Surender Kumar were recommended by the Incentive Committee for out of turn promotion which was approved by the then CP. In view of above, the order whereby cash reward was given to the applicants and Constable Surender Kumar was cancelled and Constable Surender Kumar was given ad hoc promotion also. The case of ASI Devender Kumar and HC Satyavir Singh were rejected specifically on the ground that both of them had been granted out of turn promotion recently as ASI and HC respectively.
19. It is pertinent to note that both ASI Devender Kumar and HC Satyavir Singh filed OAs before the Tribunal where Devender Kumars OA was dismissed while Satyavir Singhs OA was allowed. Both the judgments were challenged in the Honble High Court. Honble High Court allowed the Writ Petition of ASI Devender Kumar and affirmed Satyavirs judgment by observing as follows:-
We are of the view that the decision of the Respondent denying out of turn promotion to the Petitioner on the alleged ground of his having already received two out of turn promotions while granting out of turn promotion to other team members i.e. SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar is arbitrary and is not sustainable.
We, accordingly, allow the writ petition and set aside the impugned order passed in OA No. 1512/2007 and direct the Respondents to accord benefit of out of turn promotion to the Petitioner on the post of Sub-Inspector on ad hoc basis with effect from the date when three other members of the Kolkatta team namely, SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar were granted ad hoc promotions. Petitioner be also given all consequential benefits.
20. Similarly, while allowing the OA of HC Satyavir Singh, this Tribunal had passed the following order:-
It is directed that Head Constable Satyavir Singh should be given the benefit of out of turn promotion retrospectively, considering as if his name was recommended by the Incentive Committee along with the three members of the Kolkata team, namely, SI Neeraj Kumar, Head Constable Satish Kumar and Constable Surendra Kumar.
21. From above, it is clear that both ASI Devender Kumar and HC Satyavir Singh got the benefit on the premise that the applicants before us had been given the out of turn promotion as such they could not have been discriminated against. The net result is that those two persons, who had not even been recommended for out of turn promotion by the Incentive Committee have been granted the out of turn promotion on the basis that applicants have been given the out of turn promotion but applicants have been denied the same. It is nothing else but a cruel joke.
22. The case of applicants has now been rejected on two grounds: (i) The Incentive Committee on review found SI Neeraj Kumar and HC Satish Kumar had not shown any exemplary courage or valour which warrants out of turn promotion (ii) there was no vacancy of out of turn promotion quota in 2007, therefore, they are not entitled to out of turn promotion.
23. We fail to understand how can a different finding be recorded by the new Incentive Committee on their exemplary work when the earlier Incentive Committee had already recommended their case for out of turn promotion by observing that they had done exemplary work. Moreover, there is no provision under which the findings recorded and approved by Commissioner of Police could be reviewed by a subsequent Incentive Committee which is headed only by a Special Commissioner of Police. According to us, it would be travesty of justice if these persons, who were made the basis for granting relief to others are denied the benefit of out of turn promotion. Since two other persons from the same team have been granted the relief by none other than the courts on the ground that out of turn promotion has been granted to the applicants before us, we see no justification as to why the same should be denied to the applicants. Even in Satyavir Singhs case respondents had taken the ground that he could not be given out of turn promotion because of non-availability of vacancies in out of turn promotion quota. In spite of it, relief was granted by this Tribunal to HC Satyavir Singh, which was upheld by the Honble High Court of Delhi and respondents have implemented that order also, therefore, this contention is without any merit. Moreover, applicant has invited our attention to page 110 at 116 wherein details of vacancies calculated for out of turn promotion quota in the rank of Inspector (Executive) and ASI (Executive) from the year 2005 to 2008 was provided to the applicant under Right to Information Act. Perusal of same shows that in the year 2007, the total vacancies of Inspectors were 135. The 5% quota for out of turn promotion was 6, but only 4 vacancies were filled on out of turn promotion. Similarly, the total vacancies of ASI for the year 2007 were 391, out of which 19 were meant for out of turn promotion quota, but only 4 were filled on out of turn promotion meaning thereby the vacancies were very much available in the year 2007 in the rank of Inspector and ASI both. Applicant has specifically filed this document with the OA which has not been disputed by the respondents.
24. In view of above, it is clear that the ground taken by the respondents that the vacancies of Inspector and ASI were not available under out of turn promotion quota in 2007 is wrong. As such orders dated 22.7.2010 whereby the claim of applicants for out of turn promotion has been rejected in both the OAs are quashed and set aside. Respondents are directed to give promotion to both the applicants on out of turn basis with effect from 24.7.2007, the date when other members of the same team were given the out of turn promotion. It goes without saying that applicants would be entitled to all the consequential benefits.
25. OA stands allowed with the above directions. No costs.
Let a copy of this order be placed in both the files.
(Mrs. Meera Chhibber) (L.K. Joshi) Member (J) Vice Chairman (A) Rakesh