Punjab-Haryana High Court
Kapil Dev Sharma vs Chandigarh Administration & Others on 30 January, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
CWP No.14883 of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 30.01.2014
CWP No.14883 of 2004
Kapil Dev Sharma ...Petitioner
Vs.
Chandigarh Administration & others ...Respondents
Present: Mr. K.G.Chaudhary, Advocate, for the petitioner.
Ms. Lisa Gill, Advocate, for respondent Nos.1 & 2.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Pranav Chadha, Advocate, for respondent No.3.
CWP No.5370 of 2010
Inspector Yashpal & others ...Petitioners
Vs.
The Central Administrative Tribunal, ...Respondents
Chandigarh & others
Present: Mr. Manu K. Bhandari, Advocate, for the petitioners.
Mr. Sanjay Kaushal, Advocate, for respondent Nos.1 to 4.
Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Pranav Chadha, Advocate, for respondent No.5.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLR MR. JUSTICE FATEH DEEP SINGH
HEMANT GUPTA, J.
This order shall dispose of aforementioned two writ petitions i.e. CWP No.14883 of 2004 and CWP No.5370 of 2010, directed against the promotion granted to Sub Inspector Ram Gopal, as Inspector in Chandigarh Police though by different set of petitioners.
Kumar Vimal2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -2-
For facility of reference, the facts are taken from CWP No.14883 of 2004. However, whenever some documents are not available in this writ petition, reference shall be made to the documents from CWP No.5370 of 2010, which shall be hereinafter referred as 'the second petition').
The petitioner claims to be an outstanding sportsman appointed in Chandigarh Police on account of his achievements in sports i.e. Handball. He was appointed as Constable under the Sports quota on 07.07.1981. The petitioner was promoted as Head Constable in the year 1982 on the basis of his achievement in the field of sport having represented Indian Team in Asian Games in Delhi in the year 1982. Later the petitioner was promoted as Assistant Sub Inspector (ASI) on 07.12.19900. He claims to have been promoted as Sub Inspector (SI) on the basis of seniority without taking benefit of Sports quota. It is alleged that respondent No.3 i.e. SI Ram Gopal (now promoted as Inspector) was appointed from the General category, but took up Yoga exercises and participated in various events. It is alleged that discipline of Yoga does not fall under the category of games as Yoga has not been assigned any grading by the Chandigarh Administration. The petitioner, thus, challenges the promotion granted to respondent No.3 to the post of Inspector against the Sports quota.
In the second petition, all the petitioners are directed appointed Assistant Sub Inspectors and have been promoted as Sub Inspectors. The grievance of the petitioners is that SI Ram Gopal (now promoted as Inspector) was junior to them, but has been promoted against the category of 'Outstanding Sports person' though he was not eligible for the said Sports quota for the reason that Yoga is not a sport recognized by any recognized Sports Association. Another ground of challenge is that the certificate of participation in the International Event is forged and fabricated document. Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -3-
The brief resume of policies and instruction in respect of promotion from the post of Sub-Inspector to the post of Inspector against the Sports person category needs to be stated first. The Home Department of the Chandigarh Administration notified rules for promotion of Outstanding Sportsman in the Police vide Notification dated 14.09.1988 (Annexure A-12). Such Rules are said to be framed by the Sportsman Promotion Committee constituted by the Inspector General of Police, Chandigarh for promotion of Outstanding Sportsman in Chandigarh Police under Sports quota. The relevant extract from such Rules reads as under:
"DEFINITION The terms contained in the Notification will be translated for elaboration as follows:
1. Member of the Public Force means, member of the Chandigarh Police force of UT cadre whose disciplinary powers vest with the Senior Superintendent of Police or the Inspector General of Police, UT, Chandigarh.
2. Outstanding distinction will denote following order or precedence:
International Event i. Gold Medal (Winner) Marks: 50 ii. Silver Medal (Runners-up) Marks: 40 rd iii. Bronze Medal (3 position) Marks: 30 iv. Participation Marks: 25 NB: The above categories of precedence will apply only in cases where 5 or more teams in the concerned event have participated. National Event:
i. Gold Medal (Winner) Marks: 25
ii. Silver Medal (Runners-up) Marks: 15
iii. Bronze Medal (3rd position) Marks: 10
iv. Participation in the nationals
recognized by Indian Olympic
Association Marks: 25
xx xx
All India Level:
It will denote recognized events or national level and All India events recognized by Indian Olympic Association. International Level:Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -4-
It will denote participation in International Sports events recognized by Asian Federation/International Federation.
1. Anyone who secures 25 or more marks after implementation of these rules becomes eligible for consideration of promotion under the rules.
2. Any member covered under these rules who participates in National or International events should have been a bona fide member of the Chandigarh Police Team in the same discipline, provided otherwise if he is allowed by the competent authority to participate directly without having participated in above tournaments without being a member of the Chandigarh Police team.
xx xx"
Later, the Inspector General of Police, U.T. Chandigarh has issued a Standing Order No.10 of 1996 in respect of promotion to outstanding sports person in the Chandigarh Police. The relevant extract from such Standing Order (Annexure A-13) reads as under:
"SUB.: OUT-OF-TURN PROMOTION FOR DISTINCTION IN SPORTS.
1. OBJECT The object of this standing order is to lay down the procedure to give promotion @ 5% as per PPR 13.1 from amongst the members of the Police Force, who achieve outstanding distinction in sports field at all India or International level, if they are otherwise eligible for promotion but for seniority.
xxx xxx xxx
3. Criteria laid down for promotion In super session of all the previous orders the below mentioned criteria is laid down for promotion on Sports basis:
xx xx
(iv) From Sub-Inspector to Inspector: Any major achievement at International level or more than 3 achievements (Gold Medals) at National Level (as above) after the earlier performance for which he has already been rewarded.
xxx xxx xxx"
Such Standing Order was superseded by Standing Order No.8 of 2002 (Annexure P-6). The said Standing Order specifies the sports events, which will be considered for the purpose of Standing Order for promotion Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -5- with a further stipulation that Inspector General of Police is competent to add or delete any sports event. Out of such 15 events, Handball is one of the sports events, but Yoga is not included in such sports events. The relevant criteria for promotion from Sub Inspector to Inspector in the said Standing Order read as under:
"Subject: Criteria for consideration of cases of police personnel for out of turn promotion under sports quota provided under Rule 13.1. of Punjab Police Rules.
xx xxx xxx Promotion from Sub-Inspector to Inspector A Sub Inspector will be eligible for consideration for promotion to the rank of Inspector if:
Individual performance
1. He qualifies for the final round in Olympics, or
2. He wins a medal in the commonwealth / Asian Games, or
3. He wins three gold medals in the national games Team Events
1. The team, he is representing (and also plays) wins any medal in Olympics / Common Wealth / Asian Games or the team he is presenting wins three times gold medal in the national games. Promotion from ASI to SI and HC to ASI An ASI and HC will be eligible for consideration for promotion to ASI and SI respectively if:
Individual performance
1. He is having achievement as mentioned above for promotion from the rank of SI to the rank of Inspector, or
2. He wins three gold medals in all Indian Police Games, or
3. Two gold medal in National Games.
Team Events
1. If he is having achievement as mentioned in the case of promotion from the rank of SI to the rank of Inspector mentioned above, or
2. He is selected to represent the country in team events in Olympic / Asian / Common Wealth Games; or
3. The team he is representing wins twice gold medals in national games, or
4. The team he is representing wins thrice gold medals in all Indian Police games.
xxx xxx xxx"Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -6-
The Chandigarh Administration has issued a policy on 07.05.1993 (Annexure R-2) in respect of reservation of seats for Sportsman/Sports regarding admission to educational / technical / medical institutions under the control of Chandigarh Administration. The relevant extract from the Policy reads as under:
"I am directed to address you on the subject noted above and to say that in order to bring uniformity in matters regarding admission in all the institutions under the control of Chandigarh Administration and also to clarify the policy more with regard to reservation of seats to remove any ambiguity while implementing the same and further with a view to making such policy handy and available at once place, it has been decided by the Chandigarh Administration to frame the policy for reservation in admissions afresh as under:
xx xx xx xx
(e) Reservation for sportsmen/sportswomen
Two per cent seats would be filled up with sportsmen/sportswomen as per guidelines annexed."
The policy contemplates that the students seeking admission to the Sports category shall be considered if the achievement in sport relates to any of three years preceding the year of admission. The Sports Gradation Certificate is classified into four Grades i.e. A, B, C & D. Grade 'A' is of International events, whereas Grade 'B' is primarily of National events. For the purpose of present writ petitions, Grades 'A' & 'B' would be relevant. Both the Grades read as under:
"Grade 'A' Sportsmen/women of International standing i.e. those who have represented India in the following International tournaments/Meets/Competitions/ Championships etc.:
(i) Olympic Games.
(ii) Commonwealth Games.
(iii) Asian Games
(iv) Test Matches/One day matches in Cricket.
(v) Davis Cup in Tennis.
(vi) World Cup Tournaments in respective games.
Kumar Vimal
2014.02.25 18:33
I attest to the accuracy and
integrity of this document
Chandigarh
CWP No.14883 of 2004 -7-
Grade 'B' Sportsmen/women, who have participated or took first three
positions in the following
tournaments/meets/competitions/Championships etc. as the case may be:
(i) World Universities Games.
(ii) Asian Federation Cup/Asian Tournaments.
(iii) First three positions in recognized National Championship,
Inter-State Championships organized by the recognized National Federations/IOA.
(iv) Recognized International Meets/Championships for juniors.
(v) Asian School Games.
(vi) ............"
In the said policy for admission to the reserved category of Sports, 20 sports are specified, but Yoga was not initially included as a sports event. However, vide Circular dated 29.04.1997 (Annexure R-3/1), Boxing, Yoga and Rifle Shooting were included in the Sports Gradation Policy dated 07.05.1993. The relevant extract from the Circular dated 29.04.1997 reads as under:
"On the recommendation of expert committee, the Sports Department, Chandigarh Administration has decided to include of 3 games i.e. Boxing, Yoga and Rifle Shooting in the existing Sports Gradation Policy issued by the Home Department vide letter No.19/1/3/93/IH(3)-8019 dated 07.05.1993."
The facts leading to the present petition need to be stated at this stage. Respondent No.3 Ram Gopal was promoted as Inspector on ad hoc basis in recognition of his outstanding achievements in the field of sports on 29.10.1998 (Annexure A-14). However, he was reverted on 30.10.2000 (Annexure A-17). Ram Gopal - respondent No.3 challenged the order of reversion before the Central Administrative Tribunal. In pursuance of the directions of the Tribunal, an order dated 22.01.2002 (Annexure R-3/3), setting aside the reversion order, was passed by the Home Secretary, Chandigarh Administration. The Inspector General of Police was also Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -8- directed to reconsider the claim of SI Ram Gopal for promotion under Rule 13.1 of the Punjab Police Rules. It was found that reversion on the principle of last come first go is not tenable for the reason that the cadre of Inspectors in Chandigarh Police consists of 45 posts. Even if the cadre is reduced by three posts, the 5% posts under the Sports quota would still constitute two posts. The Home Secretary, Chandigarh also considered the proceedings of Departmental Promotion Committee held on 15.02.2001 rejecting the claim of SI Ram Gopal for promotion on the ground that Yoga is not a sports event under the criteria framed and held that the Administration has included Yoga in Sports Gradation Policy, therefore, in the absence of any criteria under Rule 13.1 of the Punjab Police Rules or in the Standing Order No.10 of 1996, the eligible Games/Sports have to be those, which are approved as such by Chandigarh Sports Department. Therefore, the claim for promotion against the category of outstanding sports person cannot be rejected on that ground. After the aforesaid order was passed, the Departmental Promotion Committee considered the claim of 20 Inspectors, all of them being (Ad hoc)/Sub Inspectors, for the grant of List 'F' i.e. of Inspectors and further regularization of promotion in its Meeting held on 20.10.2003. The relevant extract from the Minutes of Meeting held on 20.10.2003, which have been produced by Ms. Lisa Gill during the course of arguments, reads as under:
"This case to be considered by the DPC is with regard to the grant of list 'F' and regularization of promotion as Inspector in respect of Inspectors (Ad hoc) and also grant of list 'F' and further promotion as Inspector from the rank of Sub-Inspector against the existing three vacancies.
xxx xxx xxx
5. Inspector (Ad hoc) Ram Gopal No.320/CHG (Sports quota) He was appointed as P/ASI on 16.03.1991 and promoted as Sub- Inspector on 11.06.1996. He was promoted to the rank of Inspector on ad hoc basis on 24.01.2002 against sports quota. He has got satisfactory ACRs for the year 1997-98 to 2000-01. No Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -9- DE/Criminal case was pending against him nor any major/minor punishment has been inflicted to him during the last three years/six months as on 24.01.2002. The DPC is of the view that he may be brought on list 'F' and his ad hoc promotion be regularized w.e.f. 24.01.2002 against sports quota subject to the final outcome of O.A. No.650-CH-2002 filed by Sub-Inspector Kapil Dev, No.302/CHG presently pending before the Hon'ble Central Administrative Tribunal, Chandigarh.
xxx xxx xxx"
Consequent to such recommendations of the Departmental Promotion Committee, the Inspector General of Police passed an order on 21.10.2003 promoting respondent No.3. Ram Gopal as Inspector w.e.f.
24.01.2002 under Sports quota. It is the said promotion, which was subject matter of challenge before the Tribunal in Original Application bearing O.A.No.650-CH/2002. The petitioner- Kapil Dev is aggrieved against the order dated 19.12.2003 passed in such Original Application.
In the second writ petition, the petitioners claim to be senior of Ram Gopal as Sub Inspectors and, therefore, assert that Ram Gopal is not an outstanding Sports person in any sport event, which is recognized by Chandigarh Administration as per the Standing Order of 2002. It is also contended that the Sports Gradation Policy relied upon by the Home Secretary while granting promotion to Ram Gopal is patently illegal, as such Promotion Gradation Policy is only for the purpose of admission to the Educational Institutions and not relevant for appointment/promotion under the Chandigarh Administration. It is also argued that Yoga is not a sports event recognized by any of the Sports Association in India and any achievement in such sport, will not make the respondent eligible for promotion. It is also contended that the certificate of participation dated 12.10.1997 produced by respondent No.3 Ram Gopal is a forged document nor is a certificate of any distinction and, thus, reliance on such certificate is wholly unjustified. It is Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -10- argued that the Home Secretary, Chandigarh has passed an order on 22.01.2002 though Standing Order was issued specifying the Sports events on 02.01.2002 in which Yoga is not a sports event. Thus, Ram Gopal could not be promoted under the outstanding sports person category on the basis of the 1996 Standing order. Therefore, the order passed by the Home Secretary, Chandigarh is not tenable in law and also the order passed by the Tribunal.
On the other hand, learned counsel for the respondent has argued that an FIR No.80 dated 25.04.2008 was lodged in respect of allegations that the certificate of distinction in the sports event of Yoga produced by Ram Gopal such certificate is forged. The matter was investigated and after investigation, it was found that such certificate is genuine and a cancellation report dated 02.06.2008 was submitted. The departmental proceedings initiated against Ram Gopal on the basis of such certificate were also dropped vide order dated 15.10.2008, annexed with the second petition as Annexure P-
32. Therefore, the petitioners cannot be permitted to dispute the genuineness of the certificates produced as they are third party to such controversy between the employer and the employee. In any case, such certificate is genuine and has been found so by the departmental authorities.
After hearing the respective arguments raised by the learned counsel for the parties, we find that following questions are required to be examined in order to decide the present writ petitions:
(i) Whether the Standing Order No.10 of 1996 would be applicable in respect of two posts falling to the share of Sports person category for out of turn promotion or Standing Order No.8 of 2002?
(ii) Whether Yoga is a Sports event for the purposes of out of turn promotion in terms of Standing Order No.10 of 1996?
(iii) Whether the decision of the Administration that the Kumar Vimal 2014.02.25 18:33 certificate produced by respondent No.3 - Ram Gopal is I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -11- not a forged or fabricated document, requires to be interfered with in an Original Application filed by the direct recruits i.e. 3rd party to the controversy or can be examined by the Tribunal or by this Court in exercise of powers of judicial review?
(iv) Whether out of turn promotion declined to Kapil Dev Sharma is on the basis of Standing Order No.10 of 1996, if the same is applicable to the out of turn promotion quota?
The first question is; whether the Standing Order No.10 of 1996 would be applicable to two posts falling in 5% out of turn quota meant for the Outstanding Sports person. A perusal of the order passed by the Home Secretary on 22.01.2002 shows that there were 45 posts of Inspectors. Out of such 45 posts, 3 posts were abolished. 5% of such 42 posts was said to be at least 2 posts, which fall to the category of promotion as Outstanding Sports person. Three Inspectors (Ram Gopal along with two others), promoted on ad-hoc basis, were reverted due to reduction in the cadre strength, but granting Own Rank Pay vide order dated 30.10.2000. Earlier SI Ram Gopal was promoted on ad hoc basis in the year 1998. It is not the case of any of the parties that the post against which Ram Gopal was promoted on ad-hoc basis was not available falling to the category of Outstanding Sports person. The order is dated 22.01.2002, but the Home Secretary has set aside the order of reversion dated 30.10.2000 meaning thereby, the post against which Ram Gopal was promoted, though on ad-hoc basis, was in existence before the Standing Order No.8 of 2002 was issued on 02.01.2002.
The question as to which rules would be applicable for the purpose of promotion is not res-integra. In Y.V. Rangaiah Vs. J. Sreenivasa Rao, (1983) 3 SCC 284, the Supreme Court observed as under:
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -12- counsel for both the parties that henceforth promotion to the post of Sub- Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
In Arjun Singh Rathore & others Vs. B.N. Chaturvedi & others, (2007) 11 SCC 605, the Supreme Court observed as under:
"5. Mr. Calla, the learned Senior Counsel for the appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan v. R. Dayal (1997) 10 SCC 419 wherein it had been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284 it was opined as under: (SCC p. 422, para 8) "8. ... This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in, in accordance with the law existing as on the date when the vacancies arose."
In Surinder Singh Vs. State of Punjab, ILR (2012) 1 P&H 941, the Division Bench of this Court held to the following effect:
"(18) .........However, in the instant appeal admittedly the vacancies have arisen earlier to 1999 and, in fact, are of the year 1996-97. Therefore, the principles laid down in the judgment of Hon'ble the Supreme Court in the case of V.V. Rangaiah v. J. Sreenivasa Rao 1983 (3) SCC 284, would apply.
The principle of 'old vacancy old rule' laid down in the aforesaid judgment would govern the issue and, therefore, the vacancies which have accrued earlier to 1999 have to be filled up in accordance with the 1941 rules. In other words, the non-degree holder Junior Engineers would not be eligible for further promotion to the post of Sub Divisional Officer/Assistant Engineer. The aforesaid view has been followed and applied in the case of P. Ganeshwar Rao v. State of Andhra Pradesh 1988 (Supp.) SCC 740 and Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -13- also repeatedly been relied upon in the later judgments, namely, Arjun Singh Rathore v. B.N. Chaturvedi 2007 (11) SCC 605, and State of Bihar v. Mithlesh Kumar 2010 (13) SCC 467."
Thus, we find that two posts falling to the quota of Outstanding Sports person category for out of turn promotion arising prior to the issuance of Standing Order No.8 of 2002 have to be filled up in accordance with Standing Order No.10 of 1996.
In respect of Question No.(ii), Standing Order No.10 of 1996 does not specify the sports events, the participation in which event will entitle a Sub Inspector for promotion as Inspector. The promotion is to a sports person, who has achieved outstanding distinction in sports field at All India or International level. The Rules notified on 14.09.1988 did contemplate that International level events are the one which are recognized by Asian Federation/International Federation and in which 5 or more teams have participated, whereas National events are the one which are recognized by Indian Olympic Association. With the issuance of Standing Order No.10 of 1996, previous notification dated 14.09.1988 for promotion of Outstanding Sports person stands superseded in terms of Clause 3 of such Standing Order. Therefore, such criteria as was notified on 14.09.1988 cannot be used for any purpose to consider the eligibility of a member of the Police Force for out of turn promotion.
The issue is as to how the suitability of a candidate is required to be determined as to whether the Sports Gradation Policy in respect of admission in the Educational Institutions in the Chandigarh Administration would be relevant for the purposes of out of turn promotion, as has been applied by the Home Secretary in its order dated 22.01.2002 or which of the other modes can be adopted by the Chandigarh Administration for Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -14- determining the capability of a member of the Police Force for out of turn promotion. In the absence of any other norms, the sports gradation policy of the Chandigarh Administration can be made reasonable basis to consider out of turn promotion cases else the process would be based upon conjectures and surmises. Since the Home Secretary in its order dated 22.01.2002 has adopted the Sports Gradation Policy for admission in the Educational Institutions in Chandigarh as relevant for the purposes of promotion, we find that in the absence of any other criteria or policy, reference to such policy is reasonable for the purpose of determining eligibility of the Sports person for out of turn promotion. In such sports gradation policy Yoga is a sports event introduced in the year 1997. As per the policy, "Grade A" sports person are of international standing who have represented India in either Olympic or Commonwealth or Asian Games. The participation in Test Matches/ One day matches in Cricket or Davis Cup in Tennis or World Cup Tournaments in respective games. Thus participation in a world Cup Tournament in the event of Yoga is a sports event on the basis of which a member of the police force can be granted out of turn promotion.
The next question is in respect of the decision of the Administration holding that Ram Gopal is entitled to be promoted on the basis of his participation in the international event. It may be stated that Ram Gopal participated in 6th World Yoga Sport Cup held at Genoa (Italy) from 10.10.1997 to 12.10.1997. Such event has been found to be a genuine event during investigations of first information report. An order was passed on 15.10.2008 by the Inspector General of Police, Chandigarh to drop out the departmental proceedings initiated against respondent No.3 - Ram Gopal. The said order also records a finding that criminal proceedings initiated Kumar Vimal against Ram Gopal vide FIR No.80 dated 25.04.2008 were found to be 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -15- incorrect during the course of investigation by Mr. Madhur Verma, IPS and, thus, while approving recommendation, the case has been sent to the court concerned for acceptance of cancellation of FIR. We find that the detailed enquiry was conducted in to the genuineness of the event and the participation of Ram Gopal. We find that once the authorities have undertaken the investigations, the court in exercise of power of judicial review should not re- examine the findings as court of appeal. There is no lack of bona-fides in conduct of enquiry. The findings returned are possible findings on the basis of the material collected during the process of investigation by a member of Indian Police Service. The decision making process is neither tainted or suffers from any other illegality.
The question; whether an employee is required to be proceeded departmentally cannot be permitted to be agitated by a 3rd person. The petitioners have only chances of promotion, if Ram Gopal is not promoted. Such chances of promotion will confer any enforceable right on the petitioners to dispute the decision of the employer to close the departmental proceedings. The departmental proceedings are the matter between the employer and employee alone. 3rd person has no right to dispute the dropping of disciplinary proceedings against an employee. Reference may be made to the Supreme Court judgment in Rajnit Prasad Vs. Union of India, (2000) 9 SCC 313, when the Court observed as under:
"9. But a mere busybody who has no interest cannot invoke the jurisdiction of the court. In respect of departmental proceedings which are initiated or sought to be initiated by the Government against its employees, a person who is not even remotely connected with those proceedings cannot challenge any aspect of the departmental proceedings or action by filing a writ petition in the High Court or in this Court. Disciplinary action against an employee is taken by the Government for various reasons principally for "misconduct" on the part of the employee. This action is taken after a Kumar Vimal "domestic" inquiry in which the employee is provided an opportunity of 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -16- hearing as required by the constitutional mandate. It is essentially a matter between the employer and the employee, and a stranger, much less a practising advocate, cannot be said to have any interest in those proceedings. Public interest of general importance is not involved in disciplinary proceedings. In fact, if such petitions are entertained at the instance of persons who are not connected with those proceedings, it would amount to an abuse of the process of court."
Similarly, in respect of cancellation of FIR, the direct recruit Sub Inspectors cannot be permitted to dispute the closure report. The report is to be accepted by the magistrate concerned after giving notice to the complainant. The third person such as the petitioners has no right to object to the cancellation report. If they have no right to object the closure report, the petitioners cannot be permitted to dispute such report in the present collateral proceedings relating to the promotion of the officials. Once the departmental authorities recorded a finding that certificate produced by respondent No.3 - Ram Gopal is genuine and not a forged and fabricated document, he has been rightly considered as a Sports person entitled for out of turn promotion. Thus, we do not find any illegality in the order promoting Ram Gopal passed by the Administration and not found illegal by the Tribunal.
The fourth question is in respect of entitlement of Kapil Dev Sharma for promotion. It may be stated that the petitioner Kapil Dev Sharma is not eligible for promotion under the Sports quota in terms of Standing Order No.8 of 2002. He is said to be part of a team event. The team has to win any medal in Olympics / Common Wealth / Asian Games or the team he is presenting wins three times gold medal in the national games. He does not meet the said criteria. However, a perusal of the Minutes of Meeting of Chandigarh Police Sports Promotion Committee held on 15.02.2001 (Annexure P-34 annexed with second writ petition) shows that he was not promoted for the reason the sports event in the year 1994 and 1996 cannot be Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -17- considered as major achievement for promotion as Inspector. The relevant extract from the minutes reads as under:
"Proceedings of the Chandigarh Police Sports Promotion Committee Meeting held on 15.02.2001 at 4.00 PM.
xxx xxx xxx
2. SI Kapil Dev No.302/CHG
Sub Inspector Kapil Dev No.302/CHG was enlisted as Constable on 07.07.1981 and promoted as Head Constable on 21.04.1982. He was further promoted as ASI on 01.12.1990 and as Sub Inspector on 11.06.1996. He made a request dated 02.11.1998 for promotion as Inspector under sports quota on the grounds that he has participated in various international meets and was a prominent contributor to the National honour in winning medals in Asian Games (1982 New Delhi) and 1986 Hong Kong. He has stated that he played again in East Germany in Sept., 1982. Continuing his spree of representing the country, he was member of the team that won Silver Medal in common Wealth at Kaulalumpur in 1994. He further mentioned that he went to Cochin in 1996 and the Indian Team got Bronze in that International Meet.
The DPC has examined his request and found that he was promoted as Head Constable and ASI under Sports quota on 21.04.1982 and 01.12.1990. Therefore, his achievements upto 01.12.1990 cannot be considered for further promotion under Sports quota. As regards his performance for the period after 01.12.1990 as mentioned in his application i.e. for the year 1994 and 1996, the DPC is of the unanimous view that the same cannot be considered as major achievements for promotion as Inspector under Sports quota as per S.O. 10/96. Hence, he is not fit for promotion as Inspector under Sports Quota."
The fact; whether such certificates produced by him are of International Event in terms of the Sports Gradation Policy of 1993 appears to have not been examined. It also needs to be examined; whether certificates of participation are of Common Wealth Games, as it is pointed out by Mr. Rajiv Atma Ram that none of the events claimed by the petitioner Kapil Dev Sharma are, in fact, pertain to Common Wealth Games, but are of clubs which do not make them a International level event even in terms 1993 Sports Gradation Policy. Such issue is required to be examined by the Kumar Vimal Departmental Promotion Committee to consider the claim of Kapil Dev 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh CWP No.14883 of 2004 -18- Sharma for promotion against the available post against the Outstanding Sports person.
In view of the above discussion, we do not find any illegality in the order passed by the Central Administrative Tribunal, which is subject matter of challenge in CWP No.5370 of 2010. The said writ petition is, thus, dismissed.
Though we do not find any illegality in the promotion of respondent No.3 - Ram Gopal as Inspector in the category of Outstanding Sports person, but we find that the claim of the petitioner Kapil Dev Sharma is required to be considered afresh against the available post under the Outstanding Sports person for out of turn promotion in accordance with the Sports Gradation Policy applied in the case of respondent No.3 - Ram Gopal. Consequently, CWP No.14883 of 2004 is disposed of with a direction to the official respondents to consider the case of Kapil Dev Sharma in the light of the above observations within a period of three months from the date of receipt of the certified copy of the order.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) 30.01.2014 JUDGE Vimal Kumar Vimal 2014.02.25 18:33 I attest to the accuracy and integrity of this document Chandigarh