Delhi High Court
Rajeshwar Prasad Gautam vs Union Of India (Uoi) And Ors. on 31 May, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. An integrated seniority list issued on 20.09.1996 as also the orders dated 13.11.1996 issued by the deputy Commissioner of Police, Headquarters (I), New Delhi (in short, 'DCP') was questioned by the unofficial respondents herein.
FACTS:-
1. The unofficial respondents were enlisted as Sub-Inspectors of Police in 1969. The forth unofficial respondent whose seniority over them is in question was enlisted as Sub-Inspector (Executive) in April, 1970. On 11.12.1984, the seniority list of the confirmed Sub-Inspectors (Executive) was published wherein the position of all the concerned parties were:-
"
S. No. Name Sr. No.
i) Vijay Kumar 317
ii) Veerender Singh Ahluwalia 341
iii) Satish Kumar Ahuja 346
iv) Rajpal Singh 335
v) Rajeshwar Gautam 406"
1.1 The said respondents were placed in list 'F' of the post of Inspector (Executive) on or about 28.08.1986. So far as Inspector (Executive) are concerned, the seniority position was an under:-
"
S. No. Name Sn. No.
i) Vijay Kumar 15
ii) V.S. Ahluwalia 33
iii) S.K. Ahuja 38"
1.2 The unofficial respondents were promoted to the post of Inspector (Executive) w.e.f. 01.09.1986, 01.10.1996, 01.09.1986 and 05.12.1986 respectively. Allegedly, the name of the writ petitioner in C.W.P. No. 7481 of 2000, i.e., Rajeshwar Prasad Gautam, did not figure therein.
He was later on promoted as Inspector (Executive) on 16.02.1987. He, however, made a representation to the Lieutenant Governor, Delhi for antedating his seniority, which was rejected.
1.3 Yet again on 09.07.1988, he made a memorial to the President of India. During pendency of the said memorial, a seniority list was published on 26.04.1994 wherein his position vis-a-vis unofficial respondents' position were as under:-
"
S.No. Name Sr., No.
i) Vijay Kumar 293
ii) V.S. Ahluwalia 309
iii) S.K. Ahuja 314
iv) Rajpal Singh 305
v) Rajeshwar Gautam 363"
1.4 Only on 31.08.1995, the memorial submitted by the writ petitioner herein for antedating his seniority was allowed and he was brought in the list 'F' dated 11.11.1985 at Sr. No. 78. Consequent to the aforementioned decision, the seniority list of the unofficial respondents vis-a-vis the writ petitioner became as under:-
"
S.No. Name Sr. No.
i) Rajeshwar Gautam 231
ii) Vijay Kumar 255
iii) V.S. Ahluwalia 272
iv) Rajpal Singh 268
v) S.K. Ahuja 277"
2. The contention of the unofficial respondents before the learned Tribunal as also before us is that prior to insuance of the said order dated 31.08.1995 by the President of India no opportunity of hearing was given to them.
3. The unofficial respondents thereafter submitted their respective representations, but the same had been rejected by a non-speaking order.
4. The unofficial respondents thereafter filed the original application, which by reason of the impugned judgment has been allowed.
5. The Tribunal having regard to the provisions of the Delhi Police (Promotion & Confirmation) Rules, 1980 (hereinafter referred to as, 'the said Rules') held that the same being statutory rules, the list was required to be maintained on the basis of their respective seniority and in that view of the matter, the original applicants, i.e., unofficial respondents herein should have been promoted to the post of Inspector (Executive) prior to the writ petitioner who could not have been allowed to have a march over them.
6. The learned Tribunal noticed that the reasons which weighed with the President of India for allowing the said representation had not been placed on record and no reason in support thereof was assigned to justify the apparent illegal position arising out of the said order dated 31.08.1995.
7. A review application filed by the writ petitioner, which was registered as R.A. No. 197 of 2000, was also rejected by the Tribunal vide order dated 11.07.2000. Challenging the aforesaid judgment dated 25.05.2000 as well as order dated 11.07.2000 passed in R.A. No. 197 of 2000, R.P. Gautam filed a Civil Writ Petition No. 7481 of 2000. Union of India has also filed a Civil Writ Petition No. 7495 of 2000 challenging the said impugned judgment and order.
8. Mr. Tiku, the learned counsel appearing on behalf of the petitioner, would submit that the said Rules were made by the Administrator in terms of Sub-section (1) of Section 147 of the Delhi Police Act and, thus, no illegality can be said to have been committed by the respondents in promoting the writ petitioners.
9. Rule 5 of the said Rules reads thus:-
" 5. General principles of promotion. - (i) "Promotions from one rank to another and from lower grade to the higher grade in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection (Amended vide Notification No. F. 5/60 / 83 - H(P) / Estt., dated April 7, 1984). Zone of consideration will be determined in accordance with the rules / instructions issued by the Government from time to time.
(ii) All promotions from one rank to another against temporary or permanent vacancies, except in the case of ad-hoc arrangements shall be on officiating basis. The competent authority on completion of probation period of two years may assess the work and conduct of the officer himself and in case the conclusion is that the officer is fit to hold the higher grade, he will pass an order declaring that the person concerned has successfully competed the period of probation. If the competent authority considers that the work of the officer has not been satisfactory or needs to be watched for some more time he may recruit him to the post or grade from which he was promoted, or extend the period of probation, as the case may be.
(iii) In the case of officers who are under suspension or facing departmental enquiry, criminal proceedings, their suitability for promotion list should be assessed at the relevant time by the Departmental Promotion Committee and finding reached whether, the officer had not been suspended or his conduct had not come under investigation, he would have been recommended for selection. At the time of preparing the promotion list by selection, the Departmental Promotion Committee should also take a view as to what the officer's position in the list, would have been but for his suspension etc. The findings should be recorded separately and attached to the proceedings in a sealed envelop superscribed findings regarding merit and suitability for promotion list (name of promotion list) in respect of Shri (Name and rank of the officer) and not to be opened till after the termination of the departmental enquiry / criminal proceeding against (Name and rank of the officer)".
A departmental enquiry shall be deemed to have been initiated after the summary of allegations has been served.
List A for selection of confirmed Constable for training in lower school course.
"One Addl. Commissioner of Police and two DCP to be nominated by the C.P. List B (i) (Executive) for Pso (confirmed constable Lower School Course Trained) to the rank of H.C. Names shall be brought on this list in order of seniority as on list 'A' in terms of Rule 13(1) after obtaining report of DE/PB/Criminal case etc. etc. from concerned Distt./Unit. Etc. instead of holding any regular DPC.
(ii) (Technical) for promotion of Constable professionally qualified in Technical Traders to the rank of A.C. One Additional Commissioner of Police and two DCP to be nominated by the C.P."
10. Rule 11 of the said Rules is in the following terms:-
"11. When promotion to be made - Save as provided in the Delhi Police Appointment (Recruitment) Rules, 1980 framed under the Act, 1978 all vacancies which are not to be essentially filled by direct recruitment, shall be filled by promotion in the manner prescribed in these rules."
A bare perusal of the aforesaid rule would clearly go to show that Rule 11 of the said Rules provides as to how the promotions to be made.
11. Rule 17 of the said Rules provides for maintenance of List 'F' in the following manner:-
" 17. List 'F' - List-F (Executive) -- Confirmed Sub-Inspector (Executive), who have put in a minimum of 6 years service in the rank of Sub-Inspectors, shall be eligible. The selection shall be made on the recommendations of the Departmental Promotion Committee. The names of selected Sub-Inspectors shall be admitted to List-F (Executive) on the basis of their respective seniority, keeping in view the number of vacancies likely to occur in the following one year, and promotion made to the rank of Inspector from this list as and when vacancies become available."
12. The order of the President of India dated 31.08.1995 is as under:-
"To The Joint Secretary (Home) Government of NCT of Delhi, delhi Subject: Memorial of Inspector Rajeshwar Prasad Gautam for bringing the name on promotion list 'F' (Executive).
Sir, I am directed to refer to the Government of NCT of Delhi's letter No. F. 7 / 11 / 85 - Home (P) / Estt. Dated 10.1.1990 on the subject cited above and to say that the Memorial of Shri Gautam has been examined / considered in this Ministry and it has been decided to allow the Memorial of Shri Gautam. As such, the name of Shri. R.P. Gautam, No. D/961 may be included in the 'F' list (Executive) circulated vide Commissioner of Police, Delhi's Order No. 38951 / CB - I dated 11.11.85. His name may be included at S. No. 78 (below the name of Shri Dal Chand No. D /473 and above the name of Shir Niranjan Singh No. D/978) of the list w.e.f. 8.11.85 with all consequential benefits. Shri R.P. Gautam may please be informed Accordingly.
Files Nos. 7 / 11 / 85 - Home (P) / Estt. (in two parts), 7 / 1 / 86 - Home (P) / Estt. Of the Govt. of NCT of Delhi, Personal Flies of S / Shri R.P. Gautam, Suraj Bhan and Virender Singh are returned herewith the receipt of which may kindly be acknowledged.
Yours faithfully, (Pradeep Sen) Deputy Secretary to the Govt. of India."
13. The learned counsel for the petitioner would submit that the unofficial respondents had not questioned the said order.
14. Our attention has been drawn to an order dated 24.10.1995, which was issued by the Deputy Commissioner of Police wherein the integrated seniority list was revised and the name of the writ petitioner herein was directed to figure at Sr. No. 267A between the name of Shri Mahender Kumar, D /172 and Shri Niranjan Singh, D/1999 instead of Sr. No. 363.
15. As noticed hereinbefore, the unofficial respondents were employees of 1969 batch. In the year 1970, the appointments were made in two batches. The writ petitioner herein was appointed in the first batch of 1970. One Shri Niranjan Singh was appointed in the second batch of 1970. He had been promoted. His promotion had not been questioned by the unofficial respondents. Only the writ petitioner raised a grievance. The learned counsel would, therefore, contend that the unofficial respondents have thus acquiesced and were not entitled to file the said original application.
It was further pointed out that the said application was not maintainable as prior thereto unofficial applicants did not raised any grievance.
16. The learned counsel appearing on behalf of the respondents, on the other hand, would contend that the seniority list is to be maintained in terms of the statutory rules. So far as preparation of selection list promotion is concerned, the same has to be done by the Departmental Promotion Committee (in short, 'DPC') and not by the Ministry or by the President of India.
If by reason of the statutory rules, the writ petitioner was not found fit to be included in List 'F', there is absolutely no reason as to why, by reason of an executive order and that too without hearing the unofficial respondents and without assigning any reason, he would be placed over and above the unofficial respondents, as the terms and conditions of service of the parties are governed by the statute and the statutory rules. It was further pointed out that the Administrator had already rejected the representation of the writ petitioner.
17. Either in terms of the Delhi Police Act or in terms of the said Rules, the President of India can entertain a memorial at the instance of an aggrieved person. Once the statutory authority, namely, the Administrator had rejected the representation of the writ petitioner, his remedy was to approach the Tribunal. He did not do so.
Furthermore, it is well settled that although seniority is not a fundamental right in terms of Article 16 of the Constitution of India, but is a civil right and for the purpose of maintaining seniority in a promoted post, the authorities were required to comply with the statutory rules contained in Rules 5 and 17 of the said Rules. Thus, the unofficial respondents Nos. 4 to 7 admittedly being senior to the writ petitioner, they were to be promoted before him.
18. Selection list for promotion rightly or wrongly was prepared by the DPC and, thus, it was not for the President of India to consider as to whether the seniority-cum-fitness rules would apply or not. Even assuming that Shri Niranjan Singh was wrongly promoted, the petitioner could question the said promotion by filing an appropriate application(s), but he did not do so. He merely filed representations. admittedly while considering the representation, nobody was given an opportunity of hearing.
19. The unofficial respondents had failed to produce the records before the learned Tribunal.
20. No reason has been assigned by the President of India in passing the impugned order. It is true that the unofficial respondent Nos. 4 to 7 had not questioned the promotion of the of the aforementioned Shri Niranjan Singh, but the principles of acquiescence would be applicable only in that case but thereby their locus would not be taken away for all times to come. Alternations in the seniority list would give rise to a fresh cause of action.
21. Furthermore, the writ petitioner himself also did not contest the original application before the learned Tribunal. The learned Tribunal, in our opinion, having regard to the statutory rules correctly came to the conclusion that the unofficial respondent Nos. 4 to 7 herein could not have been superseded.
22. For the reasons aforementioned, we are of the opinion that it is not a fit case where in exercise of the power of judicial review, this Court should interfere with the impugned judgment.
These two writ petitions are dismissed accordingly. However, in the facts and circumstances of the case, there shall be no orders as to cost.