Central Administrative Tribunal - Delhi
Vivekanand Jha vs Comm. Of Police on 24 March, 2023
1
Item No. 26 O.A. No. 1506/2016
Court-VI
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1506/2016
This the 24th day of March, 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Shri Vivekanand Jha,
Aged 44 years.
S/o. Late Nityanand Jha,
Presently SHO, P.S. Kashmere Gate,
R/o. 7D, Takshshila Apartment,
Abhay Khand III,
Indrapuram, Ghaziabad, U.P.
...Applicant
(Through Advocate: Mr. Sujit Kumar Singh and
Mr. Santosh Mishra)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary,
Players Building,
I.P. Estate,
New Delhi.
2. Commissioner of Police,
Through Jt. Commissioner of Police,
Police Headquarters,
I.P. Estate,
New Delhi.
...Respondents
(Through Advocate: Mr. Puneet Rathi for
Ms. Rashmi Chopra)
2
Item No. 26 O.A. No. 1506/2016
Court-VI
ORDER (ORAL)
Hon'ble Mr. Manish Garg, Member (J) In the preset application, the applicant seeks following reliefs:
"8 (i) Pass an order quashing and setting aside the order dated 27.03.2015 and extend the benefit of judgment dated 06.03.2013 passed by Hon'ble Delhi High Court in W.P. (C) No. 5203/2012 & other connected matters to the Applicant also and in pursuance of the abovementioned judgment, the seniority of the Applicant on his OTP to the rank of Inspector(Exe.) may kindly be ante-dated to 28.04.2006 (i.e. the date when his first teammate (Ct. Pankaj Sharma) was granted OTP) and above Inspectors Umesh Barthwal & Kailash Bisht along with consequential benefits viz. seniority, promotion etc. for which the Applicant shall forever be grateful.
(ii) Pass any other further orders/directions as may be deemed necessary and fit in the facts of this case."
2. The applicant in support of his contention would contend that Annexure-A1, (the impugned order dated 27.03.2015), passed by the Competent Authority is bad in law, arbitrary and discriminatory in nature. He draws attention to the contents of the said impugned Order dated 27.03.2015, which is reproduced herein below for the sake of clarity:-
"The delay is inordinate and is not tenable. The department is not functioning at his whims and choice to get the orders in his favour. Besides, the case of SI Umesh Barthwal (now Inspr.)who had filed the above said W.P{C) No. 5203/2012, is not similar to the case of the Inspr. (Representationist) because the name of SI Umesh Barthwal (now Inspr.) was recommended and 3 Item No. 26 O.A. No. 1506/2016 Court-VI approved by the ICM and CP Delhi for OTP to the next higher rank but he could not be promoted for want of vacancy of OTP quota in the rank of Inspr. Later on his case along-with other cases was reviewed by the Incentive Committee afresh. The Incentive Committee felt that they does not deserve for out of turn promotion as per Rule-19 (ii) of the Delhi Police (Promotion & Confirmation) Rules, 1980. The then C.P. Delhi also approved the recommendations of the Incentive Committee. SI Umesh Barthwal was promoted to the rank of Inspr. (Exe.) on OTP basis with immediate effect vide notification dated 11.4.2011 only on the directions of the Hon'ble CAT and later on granted seniority from retrospective effect on the directions/judgement of the Hon'ble High Court of Delhi. His case for the grant of out of turn promotion and seniority was decided by the orders of Hon'ble CAT (dated 1.6.2010 in OA No. 3681/2009) and Delhi High Court (dated 6.3.2013 read with dated 17.3.2013 in W.P.(C) No.5203/2012) respectively, but the case of Inspr. Vivekanand Jha (representationist) was decided by the department itself and promoted him to the rank of Inspr. (Exe.) on OTP basis after availability of vacancies of OTP quota in the rank of lnspr. (Exe.) alongwith 02 other similar Sls."
3. On the basis of the above stated Order, learned counsel for applicant would contend that Shri Umesh Barthwal, who was promoted by the rank of Inspector had done a brave act on 06.03.2006, whereas the applicant has done the brave act on 13.10.2005. The Impugned Order denies the said benefit to the applicant merely on the ground that, that there is a substantial delay and thus not maintainable. It has been further highlighted that Shri Umesh Barthwal was promoted to the rank of Sub-Inspector on OTP basis with immediate effect vide Notification dated 11.04.2011, only on the direction of this Tribunal, and later on granted seniority 4 Item No. 26 O.A. No. 1506/2016 Court-VI in order pursuant to direction / judgement of the Hon'ble High Court of Delhi. He further contends that in the said case of the Shri Umesh Barthwal, the seniority was decided pursuant to the Order dated 06.03.2013 read with 17.03.2013, merely because the applicant has not approached this Tribunal cannot be a ground to deny him the promotion as granted to the Shri Umesh Barthwal(Inspector) i.e. w.e.f. 15.12.2006.
4. He also draws attention to a chart which he has placed on record, showing the relevant dates of brave act citation placed before ICM, recommendation passed and approved by ACP and date of grant of qua to Shri Umesh Barthwal, which is as follows:-
Sl. Name of Date of Citation Recommendations Approval Dated of No. the Police Brave placed passed by ICM by C.P. OTP Officer Act before granted ICM
1. SI 13.10.05 12.04.06 12.04.06 12.04.06 08.05.07 Vivekanand Jha
2. Umesh 06.03.06 04.12.06 05.12.06 05.12.06 15.12.06 Barthwal
5. The applicant has also filed an M.A. No. 865/2021, wherein he has placed on record a list of the details of police personnel, who were granted out of turn promotion on the recommendation of the Incentive Committee, wherein, the applicant has been placed at serial No. 78, 5 Item No. 26 O.A. No. 1506/2016 Court-VI wherein the date of IMC was 12.04.2006 and the date of approval of the applicant was 12.04.2006. However the date of actual promotion granted to the applicant as Inspector was 08.05.2007. He further draws attention to page 91, wherein, SI Umesh Barthwal is shown at serial No. 94, his date of approval i.e. 05.12.2006 and the date of actual promotion i.e. 15.12.2006. It can be seen in the last column that he was also not promoted due to non availability of the vacancy as was the case of the applicant herein.
6. Learned counsel for applicant further contends in his rejoinder vide para 5, which reads as under:
"5. The contents of para6 and 7 of the Preliminary objection are wrong and denied. That the applicant made the representation dated 24.02.2014 seeking the extension of relief/ benefit of seniority to the applicant with effect from 28.04.2006 i.e. date when his first team mate Constable Pankaj Sharma was granted OTP, in view of the effect and implementation of judgment passed by the Hon''ble High Court at Delhi in WP (C) No. 5203/ 2012 "Umesh Barthwal Vs GNCT Of Delhi & ors."
dated 06.03.2013, wherein it was held that notional promotion would be granted from the dates when the vacancy ensued."
7. He further draws attention to Annexure-A3 (page
24) that one Shri Pankaj Kumar, who was the Head Constable (E), was granted promotion in his category on 28.04.2006.
6Item No. 26 O.A. No. 1506/2016 Court-VI
8. Learned counsel for applicant also draws attention to citation for out of turn promotion at page 14, which is as under:-
"This is a citation for out of turn promotion of SI Vivekanand Jha, D- 3944, PIS NO. 16980014 to the rank of Inspector, HC Sukhbir Singh NO. 475/SB PIS. NO. 28824078 to the rank of Assistant Sub Inspector and constable Pankaj Sharma NO.9782/DAP PIS NO 28031218 to the rank of Head Constable for their extraordinary good work and exemplary gallant act exhibited during the elimination of dreaded, notorious and wanted interstate gangster of Bihar, Guddu Sharma @ Guddu Singh @ Jai Prakash Narain S/O Sh. Sudama Singh @ Ram Naresh Singh R/O- Vill. Saraiya, PS Gori Chak, Patna, Bihar on 13/10/05 at slip road downward, Pandav Nagar, NH-24, Delhi and recovery of arms and ammunitions were also affected.
One 38 bore revolver, 5 spent and one live cartridges were recovered from the possession of dreaded gangster Guddu Sharma @ Guddu Singh and one pistol of 7.65 bore along with 3 live cartridges was also recovered from his close associate Satish Sharma. The police party fired total 15 rounds during the shoot out. A case vide FIR No. 517/05 dated 13/10/2005 u/s 307/186/353 IPC & 25/27 Arms Act was registered at PS Pandav Nagar Delhi in this regard."
9. The other limb of the argument of the learned counsel for the applicant is that as per his information, 221 Sub-Inspectors were promoted to the rank of Inspector in 2006 in normal course. Hence, as per the Rule 19 (ii) 5% Quota under Rule quota comes to 11 vacancies, which would have been available in the year 2006, to depict this he places reliance upon a chart placed at Annexure-A2 (page 95):-
Sl. Rank Name Date of Date of Actual date 7 Item No. 26 O.A. No. 1506/2016 Court-VI No. incentive approval of Committee of CP promotion meeting Delhi 9 SI (Exe.) Sanjay Dutt 04.12.2000 22.06.01 02.01.2006 & 9/13.02.01 10 SI (Exe.) Arvind Kr, 12, 15 & 27.04.02 02.01.2006 D-2750 16.04.02 11 SI (Exe.) Akhileshwar 21.01.04 & 29.01.04 02.01.2006 Swaroop 27.01.04 D-884 12 SI (Exe.) Ranbir 15.09.04 16.09.04 02.01.2006 Singh D-3443
13 SI (Exe.) Anvind Kr 13.10.04 21.10.04 02.01.2006 D-842 14 SI (Exe.) Jitender 25.10.2005 25.10.05 30.03.2006 Singh, D/3782 15 SI (Exe.) Rajpal 14.12.2005 14.12.05 19.06.2006 Dabas, D/882 16 SI (Exe.) Ved 14.12.2005 14.12.05 19.06.2006 Prakash D/3451 17 SI (Exe.) Raj Kr, 14.12.2005 14.12.05 20.10.2006 D/3467 18 SI (Exe.) Pawan 14.12.2005 14.12.05 08.05.2007 Kumar 19 SI (Exe.) Vivekanand 12.04.2006 12.04.06 08.05.2007 Jha 25 SI (Exe.) Umesh 04.12.2006 05.12.06 15.12.2006 Barthwal
10. In the above stated chart, the applicant was at serial No. 19 and drawing analogues on the basis of the 5% quota, the applicant would have fallen in the zone of consideration in the year 2006 itself. He further draws our attention to the fact that SI Shri Umesh Barthwal was shown at serial No. 25 and was accorded the actual on 15.12.2006, that itself is discriminatory in nature and 8 Item No. 26 O.A. No. 1506/2016 Court-VI denial of promotion due to lack of vacancy could be the ground and stated by the respondents.
11. He further relies upon the decision rendered in the case of Kailash Singh Bisht Vs. Government of NCT of Delhi and Anr. (Writ Petition No. 8976/2017) decided on 13.11.2018 (page 100), where the submissions are so recorded as under:-
"Mr. Bhardwaj submits that the grant of back date promotion to Umesh Barthwal shows that in the year 2006 there were vacancies available under the 5% OTP quota for the post of Inspector. That being the position, the claim of the petitioner should have been accommodated first. The further submission of Mr. Bhardwaj is that he had also contended before the tribunal that there were 11 vacancies in the 5% OTP in the rank of Inspector considering that 221 sub inspectors were promoted under Rule 17 of the Delhi Police (Promotion & Confirmation) Rules, 1960 in the year 2006. He submits that though this issue was raised before the tribunal, the tribunal has not considered the same in the impugned order."
12. Per contra, the learned proxy counsel for respondents vehemently opposes the grant of relief to the applicant and relied upon his counter reply as under:
"2. It is trite as held by the Apex Court in Nadia Distt Primary School Council Vs. Sristidhar Biswas [AIR 2007 SC 2640] that law cannot help those who sleep over their rights.
3. In T.K. Bhardwaj Vs. Director General of Audit & Others [WP (C) No.2610 of 2011], the Delhi High Court on 13/05/2011 inter-alia held:-
"The order dated 26th March, 2009 was passed by the respondent on the direction of the Tribunal and not suo motu or on their own. The said order dated 26th March, 2009 does not constitute and cannot be regarded as a fresh cause of action to challenge the earlier order dated 2nd September, 2002. It is now well settled that repeated representations do not extend the period of 9 Item No. 26 O.A. No. 1506/2016 Court-VI limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985."
13. He also states that there is a substantial delay of 8 years. The case of the present applicant cannot be equated with the case of Shri Umesh Barthwal, as there was no vacancy in existence at the point of time. He further contended that Shri Umesh Barthwal was granted actual promotion on 15.12.2006, pursuant to the order of the Hon'ble High Court of Delhi only. The same is also recorded in the Impugned Order. It is only on the said basis Shri Umesh Barthwal was granted promotion and, therefore, the applicant herein cannot rely to the said decision passed in the case of Shri Umesh Barthwal in the facts and circumstances of the present case. The applicant was sleeping over his rights and as such cannot blame the department for the present situation, which has denied promotion to him. He has further contended that as and when the vacancies were available, immediately, the applicant was promoted on 08.05.2007.
14. It is further, contended that out of turn promotion to the next higher rank of ASI (Exe.) in respect of HC (Exe.) Sukhbir Singh was not issued at that time for want of vacancies of OTP quota in the rank of ASI (Exe.). Later 10 Item No. 26 O.A. No. 1506/2016 Court-VI on, it was decided that all the cases of OTP which were approved by the Incentive Committee earlier and by the then CP but promotion could not be given in absence of vacancy should be considered by the Incentive Committee afresh. Hence, the case of the HC alongwith other cases was referred to the Incentive Committee to review the case. The Committee considered/reviewed the case of the HC and others in its meeting held on 10.05.2010, 20.05.2010 and 28.05.2010 and found that the HC does not deserve out of turn promotion as per Rule 19 (ii) of Delhi Police (Promotion & Confirmation) Rules, 1980 which reads "officers who have shown exceptional gallantry and devotion to duty' may be promoted on out of turn basis by the Commissioner of Police. Later on, the HC filed 0A No.2304/2010 in the Ld. Tribunal. The Tribunal allowed, the said OA vide Order dated 18.01.2011. It was decided to implement the Order(s) of the Tribunal. Accordingly OTP was given to HC Sukhbir Singh 563/SB to the next higher rank of ASI (Exe.) w.e.f. 14.09.2007 i.e. the date of availability of first vacancy of OTP quota vide this Hdqrs. Notification dated 30.05.2011.
15. Learned counsel for respondents during the course of arguments orally submitted that there might be a 11 Item No. 26 O.A. No. 1506/2016 Court-VI waiting list and the department has granted actual promotion as per the vacancy position as existed in light of the provision of Rule 19.
16. No further arguments have been addressed.
17. To examine the issue in hand, we would like to highlight and reproduce Rule 19 of Delhi Police (Promotion & Confirmation) Rules, 1980, herein below:-
"19. Ad-hoc promotions.
(i) In special circumstances when there are no approved names on promotion lists, and vacancies exist, the Commissioner of Police, may promote suitable officers in order of seniority to next higher rank temporarily. Such promotions shall not entitled the officers concerned to claim and right for regular appointment or seniority or for appointment to such or any other equivalent post and shall be liable to reversion without notice as soon as qualified men become available.
(ii) To encourage outstanding sportsmen, marksmen, officers who have shown exceptional gallantry and devotion to duty, the Commissioner of Police may, with prior approval of Administrator, promote such officers to the next higher rank provided vacancies exist. Such promotions shall exceed 5 per cent of the vacancies likely to fall vacant in the given year not in the rank. Such promotions shall be treated as ad-hoc and will be regularised when the persons so promoted have successfully completed the training course prescribed like (Lower School Course), if any. For purposes of seniority such promotees shall be placed at the bottom of the promotion list drawn up far that year.
(iii) The Commissioner of Police, Delhi for the purpose of posting to the Police Training School and the Recruits Training Centre (DAP IVth Bn. at present) personnel or appropriate merit and talent may grant one rank promotion as an incentive purely on emergent basis up to the level of Inspector 12 Item No. 26 O.A. No. 1506/2016 Court-VI without .conferring on the promotee, any right of seniority and appointment whatsoever even if he may be borne on promotion list.
Such promotion shall revert to their substantive rank as soon as they are transferred out of training institutions and ceased to be an Inspector."
18. On perusal of the said Rule position, it cannot be disputed that the Ad-hoc promotion are based on vacancy as exists on the date of consideration of the cases of respective employees, who has claim for an out of turn promotion i.e. the date on which the Incentive Committee holds its meeting. On perusal of the aforesaid provision, attention is drawn to the decision rendered by the Hon'ble High Court of Delhi in batch of matter titled as Umesh Barthwal Vs. Government of NCT of Delhi (W.P.(C) No. 5203/2012), (page 26) decided on 06.03.2013, the relevant para 12 and 13 are reproduced as under:-
"12. The undisputed facts therefore would be that the petitioners were found being entitled to out of turn promotion. The vacancies to which they have to be adjusted would be the ones which accrued immediately in the year or the year thereafter as also the further year thereafter, till a vacancy became available in the 5% quota for the first time. This view has already been taken by a Division Bench of this Court, which has attained finality. Two other similarly placed persons have been granted notional promotion from the date when vacancy for their post accrued in the promotional post.
13. Thus, we dispose of the petitions directing that the petitioners would be entitled to the same benefit of notional promotion as has been granted by the Department to HC Yashpal and HC Surender.13 Item No. 26 O.A. No. 1506/2016
Court-VI The petitioners would be granted notional promotion with effect from the date when vacancies ensued in the promotional posts. The petitioners would be entitled to seniority in the promotional post by treating them as having been promoted from said date as per the rule applicable to inter-se seniority of promotees and direct recruits. Denying actual wages on the principle of not being entitled to wages for a higher post on account of not discharging the onerous duties of the higher posts, petitioners would be entitled to be notionally placed in the pay scale of the promotional post and receive notional pay increment, with actual pay with the benefit of notional pay increment from the date they assumed charge of the promotional post."
19. In the present situation, it is seen that the date of brave act is a relevant determinative factor, which has co-relation with actual promotion access to grant of promotion and out of turn promotion, in terms of Rule 19 of the Delhi Police (Promotion & Confirmation) Rules, 1980. The relevant date of brave act is the actual and real factor to be assessed by the Incentive Committee, as well as the learned Commissioner based upon the existing vacancy as on date.
20. Admittedly, as shown from the chart prepared the brave act committed by Shri Umesh Barthwal was on 06.03.2006, whereas, the applicant brave act was on 13.10.2005. The citation of the applicant was placed on 12.04.2006. However, the citation of the Umesh Barthwal was placed before ICM on 04.12.2006. The recommendations were passed in the case of the applicant on 12.04.2006, whereas, in the case of the 14 Item No. 26 O.A. No. 1506/2016 Court-VI Umesh Barthwal the recommendation was passed by ICM on 05.12.2006. It is also noticeable that in the case of SI Shri Vivekanand Jha, the recommendation passed by ICM were approved by CP on 12.04.2006. However, in the case of SI Umesh Barthwal the recommendation passed by ICM were approved by CP on 05.12.2006, which is a subsequent date. Interestingly, it is noticeable that despite the recommendation of the applicant was on time i.e. on 12.04.2006, SI Umesh Barthwal was given promotion on 15.12.2006 only on the basis of the decision rendered by the Hon'ble High Court of Delhi, in the Writ Petition No. 8976/2017, whereas, the applicant had been promoted on 08.05.2007, inter alia contending that there was no available vacancy as on date. It is also noticeable that the same is irrational arbitrary and discriminatory in nature. As we have already noted above the date of brave relevant factor, the applicant ought not to have been discriminated qua Shri Umesh Barthwal, merely, on the ground that he did not approach the Court at relevant point of time and slept for over 8 years. It is also highlighted that in the facts of the present case, the respondents were duty bound to take appropriate corrective measures after passing of the Order(s) of the Hon'ble High Court of Delhi ought to have been applied 15 Item No. 26 O.A. No. 1506/2016 Court-VI the same in rational manner own their own violation rather than waiting for a decision by the Court in the matter and not discriminated qua the applicant.
21. It is also relevant to point out that pursuant to the Order passed by the Hon'ble High Court, the Competent Authority took a decision to implement the decision on 24.01.2014. It is only noticing the said discrimination qua the applicant, the applicant immediately approached the Competent Authority for rectification of the error, by way of a representation dated 24.02.2014, i.e. immediately within one month from the date of passing the order in the favour of SI Shri Umesh Barthwal.
22. In the said factual matrix, the Competent Authority of the respondents, should have taken a holistic view and adjudicated the claim of the applicant on his own merit. The denial of the same, qua the finding arrived in the impugned Order that there is inordinate delay and the same is not maintainable is not only arbitrary but discriminatory deprivation of the legitimate rights of the applicant qua the case of SI Shri Umesh Barthwal. Moreover, the representation, which has been made in detail highlighting the discrimination, the Competent Authority has not dealt with the issue in time letter and 16 Item No. 26 O.A. No. 1506/2016 Court-VI spirit of Rule 19, taking out the actual vacancy position as highlighted in para 12 of the Order passed by the Hon'ble High Court of Delhi in Writ Petition No. 8976/2017. Hence, the plea of the respondents that there is a substantial delay in the matter and the present Original Application is barred by law of limitation is mis- pleaded and untenable.
23. It is also highlighted that the case of the applicant cannot be equated with Shri Pankaj Sharma as well SI Shri Sukhbir Singh, as they were not in the category of SI as that of the applicant herein. He can equate his case only with Shri Umesh Barthwal and Shri Kailash Bisht, who were in the category of SI.
24. In the light of the above proposition, the Impugned Order dated 27.03.2015 is quashed and set aside. The applicant is entitled to grant of promotion on the date when Shri Umesh Barthwal was granted promotion i.e. on 15.12.2006. Needless to say that the applicant shall be entitled all consequential benefits on notional basis w.e.f. 15.12.2006 and his salary shall be re-fixed accordingly. The said exercise shall be completed by the Competent Authority within a period of two months from the date of receipt of a certified copy of this order. 17 Item No. 26 O.A. No. 1506/2016 Court-VI
25. The present Original Applications is disposed of, in the aforesaid terms. There shall be no order as to costs.
(Sanjeeva Kumar) (Manish Garg)
Member (A) Member (J)
/SG/