Central Administrative Tribunal - Delhi
Kuldeep Kumar S/O Ranbir Singh vs Government Of Nct Of Delhi Through Chief ... on 6 May, 2008
ORDER
V.K. Bali, J. (Chairman)
1. Kuldeep Kumar, a Head Constable with Delhi Police, the applicant herein, pleads discriminatory treatment meted out to him in the matter of out of turn promotion. His prayer in the present Application filed under Section 19 of the Administrative Tribunals Act, 1985 is thus to issue direction to the Commissioner of Police to consider his case for grant of out of turn promotion under rule 19(2) of the Delhi Police (Promotion & Confirmation) Rules, 1980 and promote him to the next higher rank of ASI (Exe) under the said Rules w.e.f. 5.7.2005, with all consequential benefits of pay/allowances etc.
2. Brief facts of the case as set out in the Application reveal that the Inter State Cell of Crime Branch, Delhi Police, since the very beginning of bomb blasts at cinema halls had put their best in solving these cases. After arrest of two accused, Balwinder Singh and Jagan Nath, the mastermind of these blasts Jaspal Singh @ Raja and his other associate, namely, Vikas Sehgal were at large and their movements were being tracked by an expert team of Inter State Cell, Crime Branch in order to ascertain their linkage with other terrorists of Babbar Khalsa International. During this operation, the sleuths came to know that these terrorists were trying to contact Jagtar Singh Hawara, Chief of Babbar Khalsa International in India on the direction of Wadhava Singh Babbar. Jagtar Singh Hawara was involved in the assassination of late Shri Beant Singh, ex Chief Minister of Punjab, and many other sensational killings during insurgency period in Punjab. Jagtar Singh Hawara was arrested in 1996 in those cases and was lodged in Budail Jail, Chandigarh, but in January 2004, he along with Paramjit Singh @ Pammi, Jagtar Singh @ Tara and Devi Singh managed to escape from the jail after digging a tunnel. Since his escape, Jagtar Singh Hawara was underground, and the Chandigarh Administration had declared a reward of Rs. 5 lacs on his head. The leads were meticulously, patiently, intelligently and laboriously developed by about 25 dedicated members of Inter State Cell under the supervision of Shri Ravi Shanker, ACP/ISC, and finally on 8.6.2005 at about 6.15 am, a crack team led by Inspr. Subhash Tandon, Inspr. Pankaj Sood and Inspr. Sandeep Malhotra consisting of SI Ramesh Dabas, SI Ramesh Sharma, SI Manjeet Tomar and others managed to track the movements and arrested Jagtar Singh Hawara @ Prince @ Sahib Singh @ Sukha Singh, Jaspal Singh @ Raja @ Hanni Sahrotra and Vikas Sehgal @ Montu after a hot chase and scuffle during a brief encounter from GT Karnal Road near Narela Industrial Area. Three Star make pistols, 207 live cartridges, 3 fired cartridges, 1 hand grenade, 10.350 kgs of RDX, 3 remote control devices, 2 remote timer switches, 2 battery operated timers, 3 detonators etc. were recovered from the arrested persons. In this regard a case was registered at PS Alipur, Delhi. A copy of the citation issued in this behalf by the Crime Branch, Delhi on 8.6.2005 has been annexed with the Application as Annexure-B. After the encounter was over, FIR No. 229 dated 8.6.2005 came to be registered at PS Alipur, North West District (Annexure-C). For the purpose of operation dated 8.6.2005, the police officers were distributed in two teams, i.e., team No. 1 and 2, and the awards given to them are as follows:
Team No. 1i) Inspector Subhash Tandon (Rashtrapati Virta Puruskar)
ii) SI Ramesh Dabas (Rashtrapati Virta Puruskar)
iii) ASI Ranvir Singh (Rashtrapati Virta Puruskar)
iv) Head Constable Kewal Krishan (out of turn promotion under rule 19(2)
v) Head Constable Kuldeep Kumar (the Applicant) Asadharan Karya Puruskar with cash reward of Rs. 5,000/-. The petitioner has refused to accept Rs. 5,000/- as a cash award.
vi) Constable Pramod Kumar (out of turn promotion under rule 19(2)
vii) Constable Shiv Veer Singh (out of turn promotion under rule 19(2)
viii) Constable Dharambir (out of turn promotion under rule 19(2)
ix) Constable Preet (out of turn promotion under rule 19(2).Team No. 2
i) Inspector Pankaj Sood (Cash Reward)
ii) SI Manjeet Tomar (Cash Reward)
iii) SI Ramesh Sharma (Cash Reward
iv) Head Constable Davinder (Cash Reward)
v) Head Constable Ramesh Bagga (Asadharan Karya Puruskar)
vi) Head Constable Narender Rathi (Cash Reward) It is the case of the applicant that as per FIR which came to be registered at PS Alipur, he was member of team No. 1 who participated in the encounter/raid, and his contribution/gallantry act performed by him along with his teammates in operation sleuths was of high quality and enormous. The applicant along with Const. Dharamvir Singh and Const. Shiv Veer Singh with the help of the team headed by Inspr. Pankaj Sood apprehended Vikas Sehgal. It is his case that Vikas Sehgal while running also fired on him from close range with his Chinese make pistol, and the applicant taking risk of his life and showing exceptional gallantry and devotion to duty snatched the pistol from Vikas Sehgal and overpowered him. On checking subsequently, seven live cartridges were found in the magazine of the pistol which was snatched by the applicant from Vikas Sehgal. Head Constable Kewal Krishan, Const. Pramod Kumar and Const. Preet in the same encounter apprehended another terrorist, Jaspal Singh. While running, this terrorist also fired on the police party but as soon as the terrorist cocked his pistol, Head Constable Kewal Krishan also snatched the pistol and over powered him. It is the case of the applicant that the role played by HC Kewal Krishan as also by him was similar/identical, as both of them while the terrorists fired on them from close range, snatched the pistols from the hands of terrorists and overpowered them. It is the further case of the applicant that HC Kewal Krishan, Const. Pramod Kumar, Const. Preet, Const. Dharambir Singh and Const. Shiv Veer Singh have all been granted out of turn promotion under rule 19(2) of the Rules of 1980, whereas the applicant who played a similar role like HC Kewal Krishan and put his life in danger and had shown exceptional gallantry and devotion to duty, has only been awarded Asadharan Karya Puruskar with cash reward of Rs. 5000/-, and further that Const. Prahlad and Const. Ram Kumar who did not participate in the operation and only developed some information/intelligence in respect of the terrorists, were also granted out of turn promotion. HC Kewal Krishan was granted out of turn promotion by order dated 30.3.2006. In the facts and circumstances, as mentioned above, the applicant made representation dated 24.4.2006 to the Commissioner of Police pointing out clearly the role played by him and requesting for grant of out of turn promotion like other constables who participated in the same operation sleuths. Since the applicant is on deputation to Ministry of External Affairs with effect from March 2006, the aforesaid representation was forwarded to the Commissioner of Police by the said Ministry on 25.4.2006. On 17.8.2006, the Deputy Commissioner of Police (Establishment) Delhi wrote to the Ministry of External Affairs in reply to the representation stating that the exceptional gallantry and devotion to duty and out of turn promotion cannot be claimed as a matter of right, and that the applicant for his role played in the said operation had already been granted Asadharan Karya Puruskar and cash reward of Rs. 5000/-. Still dissatisfied, the applicant made yet another representation dated 8.9.2006 to the Commissioner of Police, but when the same also brought no tangible result, present Application with the relief as indicated above was filed.
3. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their counter reply contested the cause of the applicant. The primary ground in opposing the cause of the applicant is that the role played by him is not similar to the one played by HC Kewal Krishan. It has inter alia been pleaded in the counter reply that the applicant was one of the team members who participated in the operation. It is pleaded that the contention of the applicant that Vikas Sehgal fired on him with close range with his Chinese make pistol is wrong, as no firing was done by accused Vikas Sehgal on him, and that the applicant snatched the pistol from him only after Const. Dharambir and Const. Shiv Veer Singh overpowered him (Vikas Sehgal). The respondents thus state that the role played by the applicant and HC Kewal Krishan is not similar.
4. Shri Shyam Babu, learned Counsel representing the applicant, vehemently contends that in the impugned order dated 27.9.2006, the respondents have drawn no distinction between the role of the applicant and that of HC Kewal Krishan, and in fact even though it has been the case of the applicant through out, including in his representation culminating into the impugned order that the role played by him was the same as played by HC Kewal Krishan, there is no mention with regard to the same in the impugned order. Even in the order dated 17.8.2006 rejecting the second representation of the applicant, there is no mention of the role played by the applicant and the one by HC Kewal Krishan. In his endeavour to show that the role played by the applicant and HC Kewal Krishan was indeed similar, the counsel relies upon the contents of FIR dated 8.6.2005 (Annexure-C). The said FIR came to be registered on the statement of Inspector Subhash Tandon. The role of the applicant and that of HC Kewal Krishan has been vividly described in the FIR. The relevant part of the FIR reads as follows:
On the left side No. 33017354-66 was engraved on it with Chinese language, same number was engraved on the slide. You seized the Pistol through a seizure memo after preparing a sketch of it. Pistol, Magazine and four live cartridges were kept in a transparent plastic sheet and a parcel was prepared with the help of doctors tape and sealed with the seal of RD form FSL was filled in, the seal was handed over to me. In the mean time HC Kewal Krishan, Ct. Pramod Kumar and Ct. Preet Singh apprehended another person running on the slope by the roadside namely Jaspal Singh @ Raja @ Honny s/o Hardeep Singh r/o VPO Simbli, PS Garh Shankar, Distt. Hoshiarpur, Punjab whose name and address was revealed later on. While running he tried to fire on the police party but as soon as he cocked his pistol, HC Kewal Krishan, who snatched the pistol and produced to you a Chinese Star Pistol No. 32055903-66, over powered him. (emphasis supplied). On checking six live cartridges were found in the magazine and one live cartridge was found in the barrel of the pistol. The sketch of the pistol was prepared and the pistol along with seven live cartridges was kept in a transparent sheet and the parcel was sealed with the doctors tape and seal of RD was affixed on it after filling form FSL seal was handed over to me. HC Kuldeep Singh, Ct. Dharambir Singh & Ct. Shivbir Singh with the help of team headed by Insp. Pankaj Sood apprehended Vikas Sehgal s/o Sikandar Sehgal r/o 2701/13 Ranjeet Nagar, Patel Nagar, Delhi whose name and address was revealed later on. While running he also tried to fire on the police party with his illegal pistol. HC Kuldeep Singh snatched his pistol make Chinese Star on which No. 33006509-66 was engraved and produced it to you (emphasis supplied). On checking seven live cartridges were found in its magazine. After preparing the sketch of the recovered pistol you made a parcel of it with the help of transparent plastic sheet and doctors tape, the parcel was sealed by the seal of RD & form FSL was completed after taking back the seal from me on the spot and the seal was returned to me.
5. If one is to go by the contents of the FIR, as reproduced above, no distinction in the role of applicant and that of HC Kewal Krishan may be found. It could not be disputed during the course of arguments as well that the role played by the applicant and by HC Kewal Krishan, as made out in the FIR, is the same, but despite that, a distinction is sought to be made in the role played by him and HC Kewal Krishan in the counter reply filed on behalf of the respondents.
6. We have heard the learned Counsel representing the parties and with their assistance examined the records of the case. We are of the considered view that the authorities did not apply their mind to the role played by the applicant in comparison to the one played by HC Kewal Krishan, despite a specific plea raised by the applicant that there was no distinction whatsoever in the role played by him and that by HC kewal Krishan during the operation dated 8.6.2005. Prima facie, there appears to be evidence which may lead to an inference that the role played by the applicant and HC Kewal Krishan was the same. In the facts as mentioned above, this Tribunal is of the view that the matter needs re-consideration by the Commissioner of Police. It has been held by a Full Bench of this Tribunal in OA No. 187/2007 with another connected OA decided on 10.9.2007 in the matter of Nasib Singh and Anr. v. Union of India and Ors. that the plea of discrimination with regard to out of turn promotion is permissible before judicial fora. The Full Bench of the Tribunal framed the following question for answer:
Whether the Tribunal can judicially review, by evaluation of the role of a Police Officer for grant of out of turn promotion, by comparing the same with another officer and if so, to what extent?
After taking into consideration the relevant provisions of the Delhi Police Rules as also judicial precedents dealing with the issue, the Full Bench held as follows:
11. We are of the view that under Article 14 of the Constitution, discrimination or arbitrariness, when complained, all the judicial forums in the country would be duty bound to examine the same and give appropriate relief wherever the facts and circumstances of the case may so demand. Striking down arbitrariness is also judicially evolved rule of administrative law and, therefore, it cannot be said that even on the ground of discrimination or arbitrariness the question of out of turn promotion cannot be dealt with.
The pen ultimate paragraph of the judgment reads as follows:
13. The law being that any State action called in question on the ground of discrimination would be amenable to judicial review, the question framed above has to be answered in positive. Having said so, however, we would hasten to add that the scope of judicial review would be limited only to find out discrimination which may be writ large on the face of it. If in a given case, therefore, by process of reasoning, it may be stated by the respondents that the case of a person for out of turn promotion is not comparable with that of a person demanding such reward of out of turn promotion, it will not be permissible for the Court to embark upon and enter into the controversy and to return a finding of its own, unless reasons making out a distinction may be totally perverse or absurd on the very face of it.
7. In view of the discussion made above, this Application is partly allowed. Impugned orders dated 17.8.2006 and 27.9.2006 are quashed and set aside with direction to the Commissioner of Police, Delhi to re-determine the case of the applicant for grant of out of turn promotion, in view of the observations made in this order. There shall, however, be no order as to costs.
8. Before we may, however, part with this order, we may mention that the impugned orders in this case have been passed by Deputy Commissioner of Police and Joint Commissioner of Police, whereas, the competent authority to pass the same is the Commissioner of Police. In fact, this is one of the grounds assailing the orders in question. It is not disputed during the course of arguments as well that the competent authority under rules to decide out of turn promotion matters is the Commissioner of Police. We thus order that the matter may be re-considered by the Commissioner of Police only and not by any officer lower in rank to him.