Central Administrative Tribunal - Delhi
Sub-Inspector (Exe.) Raj Kumar Atri vs Gnct Of Delhi on 7 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1396/2011 NEW DELHI THIS THE 7th DAY OF JULY, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Sub-Inspector (Exe.) Raj Kumar Atri, No. D-1267, PIS No. 16950083, S/o Sh. Pyare Lal, R/o RZF-21, Gali No. 4, Mahavir Enclave, Dwarka, Delhi-43. Applicant. (By Advocate Shri Sourabh Ahuja) VERSUS 1. GNCT of Delhi, Through Lt. Governor, Govt. of NCT of Delhi, Raj Niwas, Delhi. 2. Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, (Establishment), PHQ, IP Estate, MSO Building, New Delhi. Respondents. ( Through HC Mahabir Singh, departmental representative) ORDER (ORAL)
Mr. G. George Paracken:
The case of the Applicant is that in spite of the fact that the then Commissioner of Police had approved the recommendation of the Incentive Committee dated 12.05.2006 for his promotion to the post of Inspector on out of turn basis in terms of Rule 19 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980, so far the Respondents have not granted him the promotion.
2. The applicant has been working as a Sub-Inspector (Executive) in Delhi Police w.e.f. 10.05.1995. While posted as in-charge of Police Post Govindpuri, his act of courage, valor and dedication as a true policeman in saving two children from the raging fire which broke out in Nehru Camp area on 31.07.2005, were treated as a brave and gallant as he knew fully well that the situation was dangerous enough to cause his own death. The Deputy Commissioner of Police, vide Annexure A-2 Citation, recommended that the aforesaid selfless act of bravery and gallantry deserves the merit and honour with out of turn promotion to him in terms of Rule 19 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980. The aforesaid recommendation was placed before the Incentive Committee on 12.05.2006 for consideration for grant of out of turn promotion to him to the rank of Inspector. The Incentive Committee, after due consideration, recommended him for such promotion and forwarded his case to the then Commissioner of Police who approved the same. However, the respondents have not issued any order of promotion immediately because of the lack of sufficient number of vacancies earmarked for such promotion. The vacancies which became available later in 2006 were adjusted/given to the Sub Inspectors whose names were approved by the earlier Incentive Committees and approved by the Commissioner of Police during the period from February, 2001 to December, 2005. Since the respondents have not been considering his case even after the vacancies have arisen in the next year, the Applicant made the Annexure A-1 (Colly) representations dated 09.11.2010 and 14.01.2011 to consider his case for out of turn promotion in the rank of Inspector. As there was no response from the respondents to his aforesaid representations, he has filed this O.A.
3. The submission of the applicants counsel Shri Sourabh Ahuja was that this case is covered by a number of earlier Orders of this Tribunal. Accordingly, notice was issued to the respondents on 18.04.2011, returnable on 27.05.2011. On 27.05.2011, the respondents counsel sought further time to file the reply. Accordingly, the matter was again adjourned for today. However, neither the counsel for respondents was present today nor reply was filed by them.
4. We have, therefore, heard the learned counsel for the applicant and perused the records. We have seen that at least five similar cases have been decided by this Tribunal earlier. They are (1) O.A. No. 3681/2009 SI Umesh Barthwal Vs. Govt. of NCT Delhi; (2) O.A. 1290/2010 HC Sheeshpal vs. Govt. of NCT Delhi; (3) OA 3398/2010 SI Neeraj Kumar Vs. GNCT Delhi; (4) O.A. 3404/2010 HC Udaibir Singh Vs. GNCT of Delhi & Ors; (5) OA 2304/2010 HC Sukhbir Singh Vs. GNCT of Delhi & Anr; and (6) OA 1350/2010 Raj Singh & Ors. Vs. Commissioner of Police & Anr. In OA 3681/2009 filed by SI Umesh Barthwal, this Tribunal held that there was no reason to disturb the earlier finding by the Incentive Committee and to come to a contrary view on reviewing the same. Therefore, the respondents were directed to consider the applicants in that case for out of turn promotion to the rank of Inspector (Executive) and Assistant Sub Inspector (Executive) respectively, as per the rank held by them in the feeder category on the basis of the recommendations of the earlier Incentive Committee and approval of the Commissioner of Police. The aforesaid order of the Tribunal was upheld by the Honble High Court of Delhi in Writ Petition No. 5482/2010 Govt. of Delhi & Ors. Vs. SI Umesh Barthwal. The relevant part of Tribunals Order dated 01.06.2010 in O.A. 3681/2009 (supra) is as under:
21. The aforesaid interpretation, in our considered view, is the most reasonable and purposeful constructive interpretation of the provisions, which does not frustrate the object of grant of out of turn promotion to the candidates.
22. In the instant case, Commissioner of Police himself interpreting the provision and if we go by this interpretation when vacancies have not arisen in the year when the applicants were approved by the Commissioner for out of turn promotion, should not have considered them at all for out of turn promotion in the next year, as the vacancy for that year when not available, right to be considered in future is extinguished. Further, approbating and reprobating simultaneously by substituting a review incentive committee where the finds are arrived at in variance to the earlier one when such a consideration takes place itself contradicts the stand of the respondents as to filling up the vacancies in the same year, which is belied from their conduct as well. Accordingly, we have no hesitation to rule that by no adhering to the earlier incentive committees recommendations and taking a decision, as if in review, not to grant applicants out of turn promotions, despite approval by the Commissioner of Police and recommendation by the incentive committee, Rule 19 (ii) has been violated.
23. The present is also a case where applicants when sought information on 19.11.2008 it was divulged that in cases where the incentive committee had met and recommended out of turn promotion of certain officers where Commissioner of Police had approved in the same year they have been considered in future years for promotion, which goes to show that the year-wise vacancies had not been adhered to and few examples are SI Kailash Bisht, Pawan Kumar, Vivekanand Jha and in case of Head Constable Rakesh Kumar, Rajender Kumar etc. As there has been a discrimination and selectivity in application of the interpretation, as suggested by the respondents, this invidious discrimination, which does not satisfy the twin tests laid down under Article 14 of the Constitution of India, has violated the fundamental right of applicants for being considered for out of turn promotion as per the statutory rules and established to prove that the administrative authorities, on their whims and fancies by adopting a selectivity in consideration for out of turn promotion, have abused their power, which cannot be countenanced in law, in view of the decision of the Apex Court in Meerut Development Authority v. Association of Management Studies, 2009 (8) SCALE 49.
24. We also find that whereas the Tribunal directed consideration of representations of applicants for out of turn promotion, there is no direction to disturb the earlier finding by the incentive committee to come to a contrary view on reviewing the earlier decision of the Police Commissioner, which is an act of coram non judis by the respondents, being administrative or quasi-judicial authorities. Their decision-making process being against the rules vitiates the orders.
25. Resultantly, for the foregoing reasons, OAs are allowed to the extent that impugned orders are set aside. Respondents are directed to consider applicants for out of turn promotion to the rank of Inspector (Executive) and Assistant Sub Inspector (Executive) respectively, as per the ranks held by them in the feeder category on the basis of the recommendations of the earlier incentive committee and approval of the Commissioner of Police. However, on promotion the same would be prospective in effect. This shall be done within a period of two months from the date of receipts of a copy of this order. No costs.
5. On the basis of the aforesaid order of this Tribunal, as upheld by the High Court, this Tribunal has allowed similar O.As in HC Sheeshpals case (supra), SI Neeraj Kumars case (supra), HC Udaibir Singhs case (supra), HC Sukhbir Singhs case (supra) and Raj Singhs case (supra).
6. In view of the above position, we allow this O.A. The Respondents are directed to consider the Applicant for grant of out of turn promotion to the post of Inspector (Executive) on the basis of the recommendation made by the Incentive Committee on 12.05.2006 and approved by the then Commissioner of Police from the date his turn would have come against the vacancies for such out of turn promotion have become available, with all consequential benefits except arrears of pay and allowances. They are also directed to issue necessary orders in this regard within a period of two months from the date of receipt of a copy of this order. No order as to costs.
( Dr. Veena Chhotray ) ( G. George Paracken )
Member (A) Member (J)
SRD