Central Administrative Tribunal - Delhi
Bal Kishan Badola vs Govt. Of Nct Of Delhi on 5 March, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A No. 1931/2008
New Delhi this the 5th day of March, 2009
Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Mr. N.D. Dayal, Member (A)
Bal Kishan Badola,
Age 44 Years,
S/o Late Shri Mahasha Nand,
R/o G-1949, Laxmi Bai Nagar,
New Delhi. Applicant
(By Advocate Shri S. K. Gupta )
VERSUS
1. Govt. of NCT of Delhi,
Through the Chief Secretary,
Delhi Secretariat, I.P. Estate, Delhi-110 002..
2. Commissioner of Police,
Police Headquarter,
MSO Building, I.P. Estate,
Delhi. Respondents
(By Advocate Mrs. Sumedha Sharma )
O R D E R
( Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
The question raised in the present OA is whether the applicant will be entitled to be promoted as an Inspector, pursuant to promotion process, which he is deemed to have undergone.
2. On 1.12.2007, Joint Commissioner of Police (Headquarters) had published, in the official gazette names of Sub Inspectors who were admitted to promotion list F, with reference to Rule 17 (i) of Delhi Police (Promotion and Confirmation) Rules, 1980. The promotion was to be effective from 30.11.2007. In the principal list 174 names were included. The 2nd list refers to 37 persons, and it had been disclosed that the decision in respect of them were kept in a sealed cover as per Rule 5 (iii) of the Rules. The said officers names would have been cleared only after finalization of departmental proceedings/criminal cases against them. The applicant is at item No.29 therein. The third list consisting of 39 persons, referred to individuals, who had failed to achieve the benchmark adopted by the Departmental Promotion Committee (DPC) since they had been assessed as Unfit to be brought on promotion list F. The applicant submits that he should have been placed in the principal list. Respondents committed an error to presume that there were departmental proceedings/criminal cases against him, as interfering with his rights.
3. We may refer to the brief facts before examining the contentions that have been urged by the learned counsel, Mr. S.K. Gupta. The applicants career in Delhi Police could be sketched in the following manner.
4. Initially he had been recruited as Police Constable (Ministerial) on 1.3.1985. When there was a notification for recruitment of Head Constable (Ministerial), he had responded and had been selected in the year 1987. Again he had participated in the direct recruitment process for appointment as Sub Inspector (Ex.) and on selection was appointed as Sub Inspector on 6.11.1991. Normally he could have expected promotion on 1.12.2007, but as of now, promotion had been denied.
5. Mr. Gupta submits that at the time the DPC met, there was neither any criminal case pending against applicant so as to cause impediment his chance of promotion, nor any disciplinary proceedings, so as to subvert his career progress. Certain departmental developments of course, were there, but they were insufficient to block his career progress. The details as presented could be narrated as herein below.
6. On 16.10.2002, while posted in the Anti Auto Theft Squad, the applicant was heading a contingent in action. On the day getting information that a Gang was traveling to Delhi with ammunition, and with dishonest motives, on instructions, he had occasion to intercept the car occupied by the miscreants. The car was signaled to stop but as it evaded there was a chase. At Jharoda Kalan car had been intercepted. The parties in the car had started to fire; there was exchange of fire. The gang were over powered by the police party and arrested but two of the occupants, in the course of action had been shot dead.
7. There was recovery of revolver, cartridges and country guns etc., further investigations revealed that the intercepted can itself was involved in another incident of crime earlier on 27.4.2002. In respect of the incidents of 16.10.2002, Police Station Najafgarh had recorded FIR No. 592/2002. The applicant had been complainant there. The trial of criminal case so registered is in progress.
8. The disabling circumstances which had cost the applicant promotion was a fall out of the above incidents. A Writ Petition had been filed by the wife of deceased complaining of excessive action and the High Court of Delhi had passed certain orders whereby the CBI was directed to make investigation. Consequent to the order RC No. 4(S)/2003/SIU-1/SIC-1/CBI had been registered on 3.4.2003. Applicant points out that his name had not been incorporated initially, but subsequently came to know that CBI had sought sanction for prosecuting him as well. On that basis he was placed under suspension w.e.f. 19.5.2007. Applicant had thereupon filed Writ Petition No. 703/2007 and the proceedings were stayed by the High Court and later on he had been reinstated in service on 6.6.2007.
9. DPC referred to earlier was held on 30.11.2007. Mr. Gupta submits that at least as of now it is indisputable that as on the date no challan or chargesheet had been filed in the Court. This leads to a situation that there were no disabling proceedings but for some reason or other, the DPC had placed the applicants recommendations in a sealed cover.
10. Applicant had made representation in the matter and had thereupon come to know that a Review DPC was held on 29.4.2008. It had been decided that his name should be continued in the sealed cover. Of course, on the date of review DPC, a charge sheet had been filed by the CBI ( on 20.12.2007). But submission of Mr. Gupta is that the said date was irrelevant and inconsequential. There was no legality for the respondents to hold that applicants, name had been correctly put in a sealed cover on the date of the most relevant DPC date namely 30.11.2007. Mistake might have been noticed, and perhaps without authority, again applicants name is put in the sealed cover but it will not give sanctity to the proceedings to any extent. On the crucial date, the applicant should have been cleared, if his promotability had been positively assessed.
11. Mr. Gupta had brought our specific attention to Rule 5 (iii) of Promotion and Confirmation Rules which had been relied upon by the respondents for placing applicants name in the sealed cover. Rule 5 (iii) reads as following:
No member, of a subordinate rank who is under suspension or facing departmental enquiry/criminal proceedings shall be eligible for admission for training in departmental courses. Such cases shall be decided on merits by the departmental promotion committee after such proceedings are over. A departmental enquiry shall be deemed to have been initiated after the summary of allegations has been served.
No departmental enquiry or criminal proceedings could have been considered as in existence on the date of DPC namely on 30.11.2007 and therefore, reliance of Rule 5 (iii) was incompetent. The proceedings according to him is par se unsustainable, so far as his claim was concerned.
12. Counsel had also invited our attention to a judgment of Delhi High Court in Writ Petition (Civil) No. 7810/2008. With reference to DOP&T Office Memo. 14.9.1992 which modified the earlier Office Memorandum dated 12.1.1988, the High Court had observed that sealed cover procedure was to be followed only in the pin pointed circumstances and not otherwise. A Govt. servant on suspension, or a person on whom chargesheet had been issued, and also when a circumstance that Govt. servant in respect of whom prosecution for a criminal charge was pending, will be disentitled for actual promotion, but the relevant paragraph (7) of 1992 Office Memo. could not have escaped notice of the concerned respondents, the High Court had held. This reads as following:
Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion.
A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC, are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated or the charges against him and the provisions contained in this OM will be applicable in his case also.
Paragraph 2 therefore assumed importance. In a case where sanction for prosecution alone has come and further formalities are yet to be taken no sealed cover was envisaged. The Court had indicated that the earlier instructions dated 12.1.1988 had been virtually changed by the later circular. Therefore, the DPC erred in placing his name in the sealed cover and directing that he had to wait for promotion until the criminal/departmental proceedings came to an end.
13. Mrs. Sumedha Sharma on behalf of respondents, however, submits that the matter has to be viewed as of now. When chargesheet was framed on 20.12.2007, the 2nd review DPC could not have omitted to take note of the situation. However, she has not explained why a review DPC was held at all. Such procedure is envisaged only in limited circumstances and never to be done in a case as before us.
14. There was a legal right for the applicant to be considered for promotion on 30.11.2007, and by overlooking relevant rules and instructions his name was enclosed in a sealed cover. When we apply the rules, we have to transpose ourselves to the situation as was available on 30.11.2007. Respondents had no right to put his name in a sealed cover, but he was to be promoted along with his colleagues if found fit (See DOP&T OM 22011/2/99 Estt (A) dated 21.11.2002). Denial of such rights is without authority of law. As repair work, we therefore, direct that appropriate follow up orders are to be passed by the respondents to ensure that the sealed cover in respect of DPC, held on 30.11.2007 is opened and if he had been adjudged as fit for promotion, he is to be given promotion from the date when it was conferred on his colleagues.
15. We may point out that this is a case where an FIR had been registered by the applicant and consequential proceedings are yet to be finalized. A woman who lost her husband in the operations might have felt aggrieved and had set the law in motion for her own reasons. But that cannot nullify or superimpose actualities. Going through the case file we noted that there is reference to bullet holes on the vehicle in which the applicant and his colleagues were traveling, suggestive of a circumstance that the operations were at their personal risk. Possibility of a future finding about use of excess force according to us need not result in delaying promotion to the applicant, in any case.
16. We direct that the monetary benefits, which the applicant would have received if due promotion was given to him, should not be denied. Arrears of pay and appropriate fixation are also to be ordered without delay in case he is found fit for promotion. A time limit of two months is set for the purpose.
We make no order as to costs.
( N.D. Dayal ) ( M. Ramachandran) Member (A) Vice Chairman (J) sk