Central Administrative Tribunal - Delhi
Inspector (Exe.) Rahul Kumar Singh vs Govt. Of Nct Of Delhi on 12 March, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2698/2012
Tuesday, this the 12th day of March, 2013
Honble Shri George Paracken, Member (J)
Honble Shri Shekhar Agarwal, Member (A)
Inspector (Exe.) Rahul Kumar Singh,
No.D/3349, PIS No.16940057
S/o Late Sh. Babu Singh,
R/o I-707, SPS Residency, Vaibhav Khand,
Indirapuram, Ghaziabad (UP),
Group C, Aged 41 years.
Applicant.
(By Advocate: Shri Saurabh Ahuja)
Versus
1. Govt. of NCT of Delhi
Through Lt. Governor,
Govt. of NCT of Delhi,
Raj Niwas, Delhi.
2. Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building,
New Delhi.
3. Deputy Commissioner of Police,
(Establishment), PHQ, IP Estate,
MSO Building, New Delhi.
... Respondents
(By Advocate: Shri Madhurendra Jha for Smt. Alka Sharma)
O R D E R (ORAL)
Shri G George Paracken:
Applicants grievance is that he has been discriminated in the matter of out of turn promotion under Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980, which provides as under:-
(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 regularized 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 for that year.
2. In the present case, Deputy Commissioner of Police, Special Cell, Delhi recommended the cases of SI Rahul Kumar Singh (the applicant) and SI Dharmender Kumar for out of turn promotion (OTP for short) to the rank of Inspector and HC Ajit Singh to the post of Assistant Sub Inspector. All of them belonged to the same team which displayed extra-ordinary good work and exemplary gallant act that led to successful operation on 30.12.2004 in which dreaded gangster Krishan Pehalwan of gang Surender @ Sunder, carrying cash reward of Rs.25000/- on his arrest from Haryana Police, was pinned down in an encounter after a shoot out which took place at outer gate, Sugar Mill, Panipat, Haryana. Two of his associates, Pradeep and Ranbir were also apprehended. During the shoot out SI Mehtab Singh sustained bullet injuries and later succumbed to his injuries. The Incentive Committee constituted for this purpose, after going through all the material facts considered their cases twice on 14.09.2005 and 02.08.2006. Finally, in its meeting held on 04.12.2006 it was convinced that the applicant and his teammates have displayed extraordinary gallant and recommended the names of the applicant and SI Dharmender Kumar for OTP to the rank of Inspector and the name of HC Ajit Kumar for grant of Asadharan Karya Purskar with Rs.5000/- as cash reward. The said recommendations were placed before the then Commissioner of Police who after going through the same and other relevant material approved them on 05.12.2006. However, during the consideration period in the case of the applicant and others, at least 4 more meetings of the Incentive Committee have taken place and many other officers who displayed extra-ordinary gallant after 30.12.2004 were granted out of turn promotions in different ranks. According to the respondents, the applicant could not be given promotion due to non-availability of earmarked vacancies for the purpose. Meanwhile, the applicant was promoted to the rank of Inspector on his own turn along with his batch mates on 13.01.2009.
3. Later on, the new incumbent of the post of Commissioner, constituted another Incentive Committee to review the earlier decisions of the earlier Commissioner. The said Committee recommended AKP with Rs.5000/- to SI Dharmender Kumar and in the case of the applicant, it came to the conclusion that he does not deserve any incentives. SI Dharmender Kumar challenged the aforesaid decision vide OA No. 557/2011 before this Tribunal and vide order dated 05.09.2011 the same was allowed. The relevant part of the said order is as under:-
2. Learned counsel for the parties i.e. at least counsel representing the applicant and of official respondents, are ad idem that the matter in hand is covered by decision of this Tribunal in the matter of HC Sukhbir Singh Vs. GNCT of Delhi & Ors. (OA No. 2304/2010 decided on 18.01.2011). It is also an admitted position that the said judgment has been implemented.
3. During pendency of the OA, applicant made an application to implead seven persons as party respondents as he seeks seniority on the post of Inspector from them in case, his plea as regards out of turn promotion was to be accepted. We are of the view that the applicant cannot seek seniority in anticipation of the OA being allowed. Out of turn promotion is entirely on separate cause of action and seeking seniority over and above those who might have also got out of turn promotion would be premature. Confronted with the position aforesaid, counsel confines relief in this OA only to out of turn promotion.
4. For parity of reasons given by this Tribunal in the matter of HC Sukhbir Singh Vs. GNCT of Delhi & Ors. (OA No.2304/2010 decided on 18.01.2011), present Original Application is allowed in the same terms. However, question of seniority between the applicant and the seven persons, who have been arrayed as private respondents, is left open.
4. In the case of HC Sukhbir Singh Vs. Govt. of NCT of Delhi and Ors. in OA No.2304/2010 referred to in the aforesaid order, the findings of this Tribunal were as under:-
4. In disciplined forces like Army and the Police, courage and devotion to duty are the essential ingredients. The courage of a soldier from the time immemorial has been recognized for enhancement of his career at all times. This is not only seen as recognition to him alone but as motivation to others also to follow in the same footsteps. Therefore, Rule 19 was established with a view to promote courage, bravery and devotion to duty. Even if for variety of reasons, the second incentive committee could have found any discrepancy in the devotion to duty exhibited by the applicant, the committee should not have considered this matter i.e. even if we have to conclude that a fresh incentive committee review would lie, the rule of functuous officio is to be upheld by persons as representative of sovereignty in the State and not as a personal exemplifier. Therefore, while right would exist in any successor to review an order by the predecessor, it would exist only in a very limited parameters and definition. Unless fraud and such like taints the earlier decision, the decision of the predecessor is equally binding on the successor and he has no power to review it. Here in this case, the approval was granted by the earlier Commissioner on 12.04.2006 following a detailed enquiry made by the incentive committee. Even if the successive Commissioner feels that his predecessor should not have granted approval to the OTP of the applicant, he could not have interfered in the exercise of the jurisdiction of the predecessor even though he seeks to do so on the premise that earlier Commission having no jurisdiction as within the 5% quota there was no vacancy available at the relevant time. However, the practice of keeping police officials in the waiting list was prevalent and practiced widely. Long and successful practice raises good tradition which cannot be set aside by individual preferences. By long and successful practice, precedence becomes a rule and raises a legitimate expectation on the part of the applicant or a beneficiary and a liability for compliance on the part of functionality. Since a practice of keeping a person in waiting list to the extent of 5% of the vacancies to arise was prevalent, the earlier Commissioner, who was the predecessor of the present one and passed the orders in this case, had the jurisdiction to act and also the responsibility to act as doing otherwise would be such an injustice caused to the personnel in the force under his command. Therefore, for cumulative reasons, the orders of the predecessor Commissioner dated 12.04.2006 have to be upheld. For want of jurisdiction, it cannot be assailed by the successor. Therefore, the impugned order is highly arbitrary, illegal and against all canons of justice and law. The Commissioner did not have, in the circumstances, any power vested in him to order constitution of review incentive committee. On the basis of the recommendations of such incentive committee, he could not have passed any order rescinding the orders issued by the predecessor Commissioner.
5. In view of the discussions made above, we find that the impugned order is illegal and arbitrary to a very high degree and, therefore, the same is quashed. Respondents are directed that the applicant be given OTP as ASI either w.e.f. 31.10.2005 or when the first vacancy under the OTP category became available, whichever is earlier. It is further directed that he is entitled to all consequential benefits including seniority, difference in pay and arrears thereof etc. as the case may be. Since the impugned order was made disregarding salutary provisions of law and justice and against confirmed orders of superior judicial authorities, Original Application is allowed with cost quantified at Rs.5,000/-.
5. Thereafter, the respondents implemented the said order of this Tribunal and granted OTP to SI Dharmender Kumar to the rank of Inspector w.e.f. 14.09.2007 vide Annexure A-10 order dated 14.10.2011. The applicant being similarly placed is seeking the same reliefs in his case also.
6. The respondents have filed their reply. According to them, in pursuance of the direction of the then C.P. Delhi, the cases of all those who were waiting for promotion for want of vacancies of OTP quota in the next higher rank were reviewed by the Incentive Committee. After going through the citations, service record and other relevant record of all police personnel in the team including SI Dharmender, the Incentive Committee felt that SI Dharmender Kumar deserve only the award of Asadharan Karya Puraskar and asked the unit concerned to send citation accordingly. The above recommendation of the committee was approved by the then C.P., Delhi. Accordingly, DCP/Spl. Cell (SB) sent the citation for the grant of AKP to SI Dharmender Kumar. Later on, the applicant was promoted to the rank of Inspector (Exe.) w.e.f. 13.1.2009 along with his batch mates as per seniority in the rank of SI (Exe.). As such, his claim for grant of OTP on ad-hoc basis is no more covered under the rule 19(ii) of Delhi Police (Promotion & Confirmation) Rules, 1980, as the said rule provides for the ad-hoc promotion on OTP basis with immediate effect and not from any ante date. Further, they have stated in another CWP No. 10733/2009-Commissioner of Police & Ors. Vs. SI Satbir Singh, the Honble High Court of Delhi has held that the respondent was not claiming any right to be promoted under the notified Recruitment Rules and the out of turn promotion being by way of a special benefit, cannot be claimed as a matter of right and nobody can stake a claim to be promoted from a date when somebody has done good work justifying claim to be considered for out of turn promotion. Special incentive can never rank at par with statutory rights.
7. We have heard the learned counsel for the applicant Shri Saurabh Ahuja and the learned proxy counsel for respondents Sh. Madhurendra Jha. In our considered view, when the case of the team mate of the applicant SI Dharmender Kumar who was similarly placed was allowed by this Tribunal vide order dated 05.09.2011 in OA 557/2011 (supra) and the respondents have implemented the same vide their order dated 14.10.2011, there is no justification to deny the same benefit to the applicant herein. Otherwise, it will amount to invidious discrimination. We, therefore, allow this OA. Consequently, the respondents shall grant ad hoc promotion on out of turn basis to the next higher rank of Inspector (Exe.) under Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980. The date of such promotion shall be form the due date as determined in the case of promotion given to SI Dharmender Kumar to the rank of Inspector. Consequently, the applicants promotion to the aforesaid rank already granted w.e.f. 13.01.2009 shall stand pre-poned. The respondents shall pass appropriate orders in compliance of the aforesaid directions within two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Shekhar Agarwal ) ( G George Paracken )
Member (A) Member (J)
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