Central Administrative Tribunal - Delhi
Manohar Lal vs Commissioner Of Police on 23 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2325/2007 New Delhi this the 23rd day of September, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N. D. Dayal, Member (A) Manohar Lal, ASI, PIS No. 28710061, R/o B-7, Sector 12, Policy Colony, R.K. Puram, New Delhi-110066. Applicant. (By Advocate S/Shri Keshav Kaushik, Amarjeet Yadav and Parveen Sharma) Versus 1. Commissioner of Police, Police Hqrs, IP Estate, New Delhi. 2. Joint Commissioner of Police, Police Hqrs. (Estt.) I.P. Estate, New Delhi. 3. Deputy Commissioner of Police, Police Hqrs. (Estt.) I.P. Estate, New Delhi. 4. F.R.R.O., East Block, R.K. Puram, New Delhi-110066. Respondents. (By Advocate Shri Ajesh Luthra) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
The issue raised in the present application is whether it may be possible for the applicant to claim promotion to the post of Sub-Inspector (Executive) from an early date viz w.e.f. 15.03.2002, as also consequential benefits, including seniority and monetary advantages, since the disabling factor had ceased to exist on that day. The issue had arisen in the following circumstance.
2. While working as an Assistant Sub-Inspector, the applicants name has been included in List E-1 (Executive) effective from 15.03.2002, in terms of rule 16 (i) of Delhi Police (Promotion and Confirmation) Rules, 1980. This was on a clearance by the Departmental Promotion Committee. The rule provides that confirmed ASIs, who have minimum six years service in the rank becomes eligible for inclusion in List E-1. Name of selected ASI is to be brought on List E-1, subject to medical fitness, in the order of seniority, keeping in view the vacancies in the rank of Sub-Inspector likely to occur in the coming year. Such a person is to be sent for training to Upper School Course. Rule 16 further provides that on successful completion of the course, his name is to be brought on Promotion List E-2 in the order of seniority in List E-1 for being promoted to the rank of Sub-Inspector as and when vacancy occurs.
3. The applicant had completed his training of Upper School Course by October, 2003.
4. However, immediately after his selection to E-1 List, he was suspended on 17.04.2002 in respect of certain allegations but was reinstated on 29.10.2002. After a departmental inquiry, a major penalty of forfeiture of one years approved service was imposed on him, on 27.08.2003. On appeal, the rigor of penalty had been reduced by order dated 05.04.2004.
5. In the meanwhile, most of the persons included in the list of March 2003 along with him, seniors as well as juniors, were brought to List E-2 and were promoted as Sub Inspectors, on routine basis. On 12.01.2004, the applicant had been advised that his name was proposed to be removed from E-1 list. As a matter of fact, after hearing him, by order dated 23.07.2004 (Annexure A-1), the Deputy Commissioner of Police (Headquarters) had informed him that his name stands removed from the Promotion List E-1.
6. The applicant, in the meanwhile, had filed Original Application challenging the penalty advice, before the Principal Bench of the Tribunal. A Division Bench had allowed the application holding that the proceedings are vitiated since Rule 15 (2) of the Delhi Police (Punishment and Appeal) Rules, 1980 had not been complied with before initiating the proceedings and also for the reason that the disciplinary authority had borrowed materials from the preliminary enquiry held, which ought not have been so done. It had been held as following:
12. In the present case before us, the order of the disciplinary authority reveals that on that night at least five Afghan Nationals were traveling who fraudulently obtained Indian passport cleared in connivance with the immigration officials. It is stated to have been proved in the fact-finding enquiry. Thus, the disciplinary authority fell into an error in taking into account the fact from the preliminary enquiry, which should not have been so done.
13. Keeping in view the same, it will be indeed an exercise in futility to go into the merits of the matter.
14. Resultantly, we allow the present Original Application and quash the impugned orders. It is directed that, if deemed appropriate, the file may be submitted before the Additional Commissioner of Police for taking fresh action. The order was on 24.03.2005.
7. In the wake of the above development, the applicant had put a submission that his case may be appropriately reviewed and he be granted promotion to the rank of Sub-Inspector with protection of seniority. The request Annexure A-7 was made on 16.05.2005. It is his case that no response had forth come for long. However, Annexure A-2 was issued on 31.08.2006 informing him that a departmental inquiry is contemplated to be held on a day-to-day basis. It was alleged that applicants conduct with reference to an incident, on 04.03.2002, amounted to gross misconduct, misuse of official powers, and indulgence in corrupt activities, which required to be dealt with departmentally. The case of the applicant is that no further steps have been taken consequent to the above. However, by Annexure A-3 on 27.04.2007, the competent authority had issued a further order reducing his pay, on the basis that the ad hoc promotion as Sub Inspector given on 28.03.2002 had stood withdrawn w.e.f. 11.03.2003.
8. All the three orders as above are under challenge. In a nutshell the applicants claim is that his promotability had been adjudged in the year 2002 and that he had been actually placed in List E-1. He had undergone the course prescribed by the rules and since the penalty which was the direct cause what stood against his actual promotion has now been obliterated by the order of the Tribunal, he is entitled to promotion, by including his name in List E-2, from the date such benefit had been given to his immediate junior. The reversion now brought about is, therefore, irregular and the refixation whereby his pay has been reduced as well as the consequential steps of denial of benefits unauthorized. As of now his fundamental rights for equality under Article 14 and 16 of the Constitution stands violated.
9. Learned counsel for the applicant submits that there has been reluctance on the part of the respondents to recognize the legal impact made by the order of the Tribunal. They might most probably be harboring a false notion. Annexure-I could not be considered as having vigor after the decision in the OA, and suo motu it was required to be recalled. The present stand adopted, virtually deny him his civil and statutory rights, and rule of law should prevail.
10. Standing counsel for the respondents, however, submits that Rule 5 of the Delhi Police (Promotion and Confirmation) Rules, had been decided to be strictly followed, and the order of the Tribunal had only limited impact, and not as claimed by the applicant. For technical reasons, the Tribunal had interfered with the punishment but gave liberty to proceed with the matter, and, as a matter of fact, indisputably Annexure A-2 order has been issued and the inquiry is in progress. Therefore, the applicant, because of presence of his name in E-I, could not have been included in E-2 list. It is because of the reason that he was under a cloud. When liberty had been granted on a remand, follow up administrative steps required to be taken, and it was not as if promotion orders straightaway were to be issued. In this context, Mr. Luthra referred to an order passed by a Bench dated 11.08.2008 in OA 686/2007, to which one of us (Justice M. Ramachandran) was a party. It had been held that there was no duty cast on the administration to take up a cause post haste of he Tribunals order, especially, in a case where interference was for a technical reason. It was a case where the impugned order although had been set aside nevertheless leave had been granted to the respondents to proceed with the matter de novo. Mr. Luthra submits that it was the situation here as well. Therefore, according to him, there is no substance in the contention that in the interregnum there was obligation in absolute terms, which obliged the respondents to confer promotion on the individual.
11. With reference to the counter statement, it had further been urged that what had been conferred earlier on the applicant was only an ad hoc promotion as envisaged under Rule 19 of the Rules. This would not have created for him any substantive rights. Unfortunately, for him departmental proceedings had been initiated and he could not earn promotion along with the other persons included in the E-1 list. He was not kept in the dark. E-2 list also specifically indicated that he was being overlooked (Annexure A-5 dated 11.12.2003). He was made known that a decision with regard to his promotion will be taken after finalization of the departmental inquiry.
12. Mr. Luthra further highlighted the averments in the statement that as a matter of fact on a later occasion, again name of the applicant had indeed been considered for promotion with his counterparts by the DPC held on 21.10.2004. He was graded unfit due to his indifferent service record and so notified on 01.11.2004. An inquiry had been initiated against the applicant, on 21.11.2005 for his gross misconduct and is seen to have been awarded a punishment of censure on 08.12.2005. There was another censure administered on him on 10.03.2008. Thus the effort from the respondents was that they had never acted arbitrarily, but situation was that applicants records were not clean. Although initially he had been found fit by E-1 list, as time progressed his credibility was deteriorating, and, therefore, no reliefs required to be granted.
13. On a close scrutiny, we find that it was a case where promotion was not ordered under Rule 19 on ad hoc basis. What was contemplated in 2002 was a regular promotion. Annexure-5 would indicate that what had spoiled his career progression was the departmental proceedings arising out of suspension dated 17.04.2002. If it was not there, he would have obtained promotion along with his colleagues.
14. Of course, the departmental proceedings culminated in a punishment, which partially had been confirmed by the appellate authority. But it is indisputable that such proceedings had been set at naught by the order of the Tribunal, on 24.03.2005. The decision was made on two counts - it was not for technical reasons alone. Nor was a remand ordered. Liberty was given to further proceed in the matter. The decision of the Tribunal dated 24.03.2005 cast a corresponding duty, viz that the applicant was to be given a treatment, which had been already given in favour of his colleagues.
15. Fact is that the matter had been indefinitely delayed thereafter. Only after one year, a formal order had been issued proposing departmental action. The applicant could not have been denied benefits, for the lethargy of the respondents in any case. To this extent, the facts differ from the circumstances noticed in OA 686/07. Counsel submits that although an order proposing resumption of proceedings had been issued, no formal steps had been taken to complete the inquiry even as of now. The initiation of proceedings if at all could have been only effective from 3108.2006, the date of Annexure A-2 (See Rule 5 of Delhi Police (Promotion and Confirmation) Rules, 1980). The claim for promotion, therefore, was required to be considered appropriately as postulated in the Rules. We are of the view that the benefit of promotion ought to have been conferred on the applicant since the Tribunal set aside the penalty advice. No remnants remained for the respondents to continue to hold that the State was not clean.
16. We are not convinced of the authenticity of the situation, as has been attempted to be explained in the counter reply, when it had been indicated that a DPC had graded him unfit on 21.10.2004. This was because the DPC could not have decided one way or other on 21.10.2004 as an earlier DPC had adjudged him as eligible and issues were pending as Appeal and OA. In any case, it had become inconsequential, since punishment which operated against the applicants claims which rendered him unfit as per norms had been set aside by the Tribunal.
17. Perhaps, applicant might have been issued with a censure later on (8.12.2005) in some other context. But long before the above date, taking notice of the impact of the Tribunals order dated 24.03.2005, he should have been brought to the cadre of Sub-Inspector, with effect from the date his juniors were so promoted. The order of censure later on served on him, therefore, was to be deemed as received by him while he was in the cadre of Sub Inspector. This always would be a possible course.
18. In the above background, we have to hold that Annexure A-1 order dated 23.07.2004 requires to be set aside. It cannot control the field after Tribunal had upset the penalty advice. Annexure A-3 order also requires to be set aside for the above said reason. We are not interfering with Annexure A-2 since it is within the competence of the respondents to proceed as they deem fit in accordance with rules. What has to be carried out is to come up with appropriate orders so as to ensure that the applicant is promoted to the cadre of Sub Inspector effective from the date his immediate junior was promoted. He will be entitled to fixation and all arrears of pay, as admissible to a regular employee from the above date of promotion to be assigned.
19. We direct that consequential orders are issued within a period of two months from today. Arrears after refixation of pay also to be given within the above time limit. We make no order as to costs.
(N.D. DAYAL) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD