Central Administrative Tribunal - Delhi
Si Umesh Barthwal vs Gnct Of Delhi Through Lt. Governor on 1 June, 2010
Central Administrative Tribunal Principal Bench OA No.3681/2009 OA No.3685/2009 OA No.3687/2009 OA No.3688/2009 OA No.3689/2009 OA No.3690/2009 OA No.3691/2009 New Delhi this the 1st day of June, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) OA No.3681/2009 SI Umesh Barthwal, D-3650, PIS No.16960218, S/o late Sh. R.S. Barthwal, R/o F-3, PS Lodhi Colony, New Delhi-3. -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 Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Addl. Deputy Commissioner of Police (Establishment), PHQ, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate Mrs. Sumedha Sharma) OA No.3685/2009 HC Kuldeep Singh, 128/SB (New 371/DRP), PIS No. 28840104, S/o Shri Jagat Singh, R/o C/14/1, Laxmi Garden, Najafgarh, New 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 Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Addl. Deputy Commissioner of Police (Establishment), PHQ, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate Sh. Chandra Mani Bhardwaj, proxy for Ms. Rashmi Chopra, Advocate) OA No.3687/2009 HC Raj Kumar, 331/SD PS No.28900986, S/o Shri Devdutt Sharma, R/o G-135, Sector-9, New Vijay Nagar, Ghaziabad, UP. -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 Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Addl. Deputy Commissioner of Police (Establishment), PHQ, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate Shri Ram Kanwar) OA No.3688/2009 HC Rakesh Kothiyal, 139/N (Now 595/SB) PIS No.28881240, S/o Shri K.D. Kothiyal, R/o Flat No.F-3, Plot No.156, Gyan Khurd, Indira Puram, Ghaziabad, UP. -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 Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Addl. Deputy Commissioner of Police (Establishment), PHQ, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate Shri Rishi Prakash) OA No.3689/2009 HC Sanjeev Shokeen, 1552/T, PIS No.28980038, S/o Shri Sultan Singh, R/o H. No.58, Village Kamruddin Nagar, Nangloi, Delhi-41. -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 Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Addl. Deputy Commissioner of Police (Establishment), PHQ, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate Mrs. Renu George) OA No.3690/2009 HC Manoj Kumar, 1466/T, PIS No.28980684, S/o Sh. Jag Ram Yadav, R/o H. No.149A, Village Kamruddin Nagar, Nangloi, Delhi-41. -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 Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Addl. Deputy Commissioner of Police (Establishment), PHQ, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate Shri Rishi Prakash) OA No.3691/2009 HC Manoj Kumar, 3335/T, PIS No.28961499, S/o Sh. Mahender Singh, R/o 2/153, Sector-2, Rajender Nagar, Sahibabad (Gzb.). -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 Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy/Addl. Deputy Commissioner of Police (Establishment), PHQ, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate Mrs. Renu George) O R D E R Honble Mr. Shanker Raju, Member (J):
Founded on common facts with an identical question of law, to avoid multiplicity, these OAs are being disposed of by this common order.
2. Among the batch of cases, a Sub Inspector (SI) in OA-3681/2009 is seeking out of turn promotion as Inspector in Delhi Police, whereas in rest of the OAs, including OA No.3685/2009, applicants are seeking out of turn promotion as Assistant Sub Inspector (ASI). These are two lead cases for the purpose of illustration of relevant facts and the issue involved.
3. Promotion and consideration thereof on fair and equitable basis has been ruled to be a fundamental right by the Apex Court in Union of India v. Hemraj Sihgh Chauhan, 2010 (3) SCALE 27.
4. Out of turn promotion has to be considered as a promotion different from the normal promotion being operated by different set of rules and instructions. Though in other Government Departments/Ministries out of turn promotion is alien, yet in a disciplined force when the discharge of duties and functions involve show gallantry and outstanding performance risking the life, to reward such an exemplary performance provision for out of turn promotion has been incorporated, which has reasonable nexus with the object sought to be achieved. Though in a disciplined force every officer has to perform duties, which require even risking of life, but when the actual act in paining down or demolishing a dreaded criminal or terrorist, the contribution is always treated as extraordinary and as an exemplary performance of bravery.
5. The Apex Court in CA No.7384-7388 of 2003 in Govt. of A.P. & Anr. v. G. Jaya Prasad Rao & Ors. by a judgment dated 21.3.2007 relating to out of turn promotion has gone to held, relying on S.I. Paras Kumar & Ors. v. S.I. Ram Charan & Ors., (2004) 6 SCC 88, that the courage shown by the persons in anti-terrorist operations should be recognized by framing necessary rules. There is no gainsaying that those who have performed in extreme situation they deserve better treatment but this has to be done within the four corners of the Rules. In this view, the accelerated promotion was conceived and necessary amendments were made in the Rules and the Scheme. It is also held that those persons who are prepared to volunteer and take more risk in life, why such kind of persons should not stand to gain as against those who do not want to take risk in their lives. As a matter of fact, those who take risks in their lives and prefer to face hazardous duties, such kind of persons form a class and such class of persons stand differentiated from other class of person who are not prepared to take risk in their lives and want to continue with the normal police duties and seek their promotion in due course of time.
6. With the above backdrop, Rule 19 of the Delhi Police (Promotion and Confirmation) Rules, 1980, provides as under:
19. Ad-hoc promotions(i) In special circumstances when there are no approved names on promotion lists, and vacancies exist, the Commissioner of Police, may promote suitable officers in order of seniority to next higher rank temporarily. Such promotions shall not entitle the officers concerned to claim and right for regular appointment or seniority or for appointment to such or other equivalent post and shall be liable to reversion without notice as soon as qualified men become available.
(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 not exceed 5 per cent of the vacancies likely to fall vacant in the given year in the rank. Such promotions shall be treated as ad-hoc and will be regularised 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.
[(iii) The Commissioner of Police, Delhi for the purpose of posting to the Police Training School and the Recruits Training Centre (Dap IVth Bn. At present) personnel of appropriate merit and talent may grant one rank promotion as an incentive purely on emergent basis up to the level of Inspector without conferring on the promotee, any right of seniority and appointment whatsoever even if he may be borne on promotion list.] Such promotees shall revert to their substantive rank as soon as they are transferred out of training institutions and ceased to be an Inspector.
7. Facts in these cases are identical insofar as methodology of consideration for out of turn promotion on showing extraordinary gallant, outstanding courage and devotion to duty are concerned. The concerned Deputy Commissioners have sent citation for out of turn promotion for the applicants in the next higher ranks for which an incentive committee was constituted, which when recommended the name of the applicants, was approved by the Commissioner of Police under Rule 19 (ii) of the Rules. They have been kept in waiting list for want of vacancies. RTI information sought apprised applicants as to availability of vacancies of Inspectors and Sub Inspectors, which led to filing of the OAs where respective directions have been issued to consider the claim by various orders. On consideration a novel methodology has been adopted by the Commissioner of Police whereby on the ground that since applicants were given recommendation by incentive committee in the year when the vacancies were not available, a review incentive committee did not recommend the names of the applicants for out of turn promotion. As such, their request has since been turned down on the ground that they have been awarded Police medal and President medal with cash prize and hence the claim is misconceived and liable to be rejected.
8. Learned counsel of applicants Shri Sourabh Ahuja contends that interpretation in purposive, literal and beneficial construction of Rule 19 (ii) does not prescribe denial of out of turn promotion to those in whose favour incentive committee had recommended the claim and approved by the Commissioner to hold review incentive committee and to deny out of turn promotion by recording a contradictory finding, different from what has been recorded earlier, as what is not to be exceeded is 5% of the vacancies, likely to fall vacant in the given year not in the rank but when it is decided to promote the officers but nowhere the rule shall be interpreted in such a manner that if in a particular year out of turn promotion is recommended by the incentive committee and there are no available vacancies, in such an event one cannot be considered for out of turn promotion and for which the earlier incentive committee and order on approval by the Commissioner of Police would be redundant and shall have to be reviewed by the successor administrative authority, i.e., Commissioner of Police.
9. Learned counsel would also contend that an administrative authority has no jurisdiction to review the order of his contemporary, as held and relied upon decision of the Apex Court in Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) and others, (1987) 4 SCC 525. Learned counsel has also relied upon a Full Bench decision of this Tribunal in Nasib Singh v. Union of India & Others, 2007 INDLAW CAT 19, where the recommendation made by an expert body, i.e., incentive committee, has not been interfered in judicial review. Particulars of all the applicants have been given where on a bravery act incentive committee having recommended the claim in 2005 and 2006 respectively, when approved by the Commissioner of Police, the promotion has been denied despite availability of vacancies in rank.
10. On the other hand, learned counsel of respondents have vehemently opposed the contentions. A common defence is taken that after examination of the representations by the competent authority, as directed by the Tribunal, the incentive committees meeting held in the past when there was no vacancy in the rank of Inspector and SI applicants could not be promoted on out of turn basis, as such for want of rule to promotion, issue of out of turn promotion ordered, despite no vacancy the earlier recommendation by the incentive committee did not confer any right on the individual and does not bound his successor, may be for years to grant out of turn promotion. Accordingly, the incentive committee was constituted, of which Special Commissioner of Police was Chairman and two Joint Commissioner of Police as members did not find the claim of applicants deserving for out of turn promotion.
11. Mrs. Renu George, learned counsel appearing for respondents in OA No.3689/2009 and OA No.3691/2009 stated that the applicants in these cases have not committed any bravery act, which is worth recommending out of turn promotion, as compared to others, who were given promotion. In their cases the incentive committee in review having evaluated the performance cannot be subjected to judicial review.
12. We have carefully considered the rival contentions of the parties and perused the material on record.
13. In G. Jaya Prasad Rao (supra) insofar as review of an administrative action by an administrative authority is concerned, the only scope, which is reflected is that when the order passed is by mistake or ignorance of the relevant facts or where a fraud has been practiced or willful suppression on the part of the concerned, administrative authority when acts the discretion vested is neither unbridled nor unfettered and has to be exercised judiciously, as ruled by the Apex Court in a catena of decisions, including Union of India v. Kuldeep Singh, (2004) 2 SCC 590. It is also held by the Apex Court in Bhiku Bhai Patel v. State of Gujarat, (2008) 4 SCC 144 that a discretion in administrative function is neither absolute nor unfettered. A creature of the statue in all four corners is bound to perform its statutory duties in consonance with it.
14. In Dr. Kuntesh Gupta (supra) the Apex Court ruled that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction.
15. It is also trite that a successor to an office being an administrative authority of equivalent rank cannot review the order, which after a policy decision has been taken, unless there has been a change in the policy or some additional factors, mistake, fraud etc. are disclosed. If this course of action is allowed to perpetuate and ratified in judicial review then there would be no sanctity of functioning in the executive and administrative authorities on the drop of hat without any reasonableness and justification with ulterior purposes could alter the decision taken by their counterparts. The exercise of power in such an event would not only be arbitrary, unbridled and unfettered as well. Moreover, in the sanctity of administration and hierarchy of order passed by the Commissioner of Police, recommending the name of the applicant was issued on the whims and fancies of exercise of discretion non-judiciously. An incentive committee duly constituted under the rules having recommended the names of the applicants for out of turn promotion, when consciously dealt with by the then Commissioner, having approved it, the only question arises as to what is the justification, which prompted the Commissioner of Police in succession to revoke and disapprove the orders of the earlier Commissioner of Police and to discard the finding of the incentive committee. The only reason which comes-forth is that since the year in which the out of turn promotions were approved no vacancy in the particular ranks was available, as such it necessitated a review incentive committee. The aforesaid conclusion and justification is not only illogical, irrational but also is against the statutory rules.
16. To interpret a provision of the statute or a rule the basic principle is to farther the aim and object of the rules and also the intention of the legislature or subordinate and delegated legislation or subordinate one to be gathered from the language used with literal interpretation. More so when the statutes words are clear.
17. It is one of the cardinal principles of interpretation that a literal construction is to be avoided, if it causes hardship or injustice to a party, as ruled by the Apex Court in Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555.
18. In the matter of interpretation if a thing is to be done in a manner nothing could be added, as ruled by the Apex Court in Gujarat Urja Vikash Nigam v. Essar Power Ltd., (2008) 3 SCALE 469. As ruled in Nair Service Society v. Dr. T. Beermasthan & Ors., 2009 (4) SCALE 435 that while interpreting a rule or statute, if two interpretations are possible then the one favouring practice followed for long, unless against the rules, is to be adopted. Also held in Edukanti Kistamma (deal) through LRs and Ors. v. S. Venkatareddy (dead) through LRs and Ors., (2010) 1 SCC 756 that in beneficial interpretation the object is to advance social and economic justice.
19. With the aforesaid principle of interpretation the provisions contained in Rule 19 (ii) of the Rules are clear and divided into two parts, one provides out of turn promotion recommended by the Commissioner of Police to a higher rank with prior approval of Administrator in cases where outstanding officers have shown exceptional gallantry and devotion to duty. The methodology to determine exceptional gallantry is no more res integra and as ruled by the Full Bench of the Tribunal in Nasib Singh (supra) is the incentive committee. The second part provides methodology to operate such promotion and imposes a limit of 5% of the vacancies, against which out of turn promotions are to be effected, likely to fall vacant in the given year but not in the rank. The aforesaid when construed in its object with a harmonious construction with the first part of the provision it is not the total cadre strength in the rank in which promotion is made, 5% vacancies are to be reserved for outstanding sportsmen, marksmen, officers who have show exceptional gallantry and devotion to duty, but it refers to vacancies likely to fall vacant in the given year. The given year has been construed by the respondents as the same year in which out of turn promotions have been recommended by the Commissioner of Police, which does not farther the object of promotion, as once the exceptional gallantry has been shown, it has been ruled accordingly by the incentive committee, which is a committee constituted by the Commissioner of Police. Its finding as to person being fit to be given out of turn promotion cannot be questioned when not based on any fraud, misrepresentation or mistake then such a recommendation would remain available with the respondents to be acted upon, but in any of the year when such promotion is effected, it has to be kept in mind that the promotion should not exceed 5% of the vacancies for that year. Otherwise, if out of turn promotion recommendation is confined to that year, when there are no vacancies, then the very purpose of making a departure as a special provision under Rule 19 for out of turn promotion will become otiose. Out of turn promotion will be dependent not against the same year vacancy but in contingency or future when such vacancy exists, but it has to be ensured that whenever recommendation of Commissioner of Police is to be given effect to for promoting the officers, 5% of the vacancies likely to fall in that year must not exceed. If the other interpretation as propagated by the respondents is accepted, it would certainly be in violation of the ratio delivered by the Apex Court in G. Jaya Prasad Rao (supra).
20. Furthermore, the aforesaid interpretation gains support from the fact that regularization in such promotion, which is on out of turn basis, is not independent, it has been subjected to completion of training course and regularization and for the purpose of seniority the promotee shall be placed at the bottom of the promotion list drawn for that year. An illustration to describe this would be when a police officer is given out of turn promotion but no training is held, then on completion of training, may be after few years, the person is regularized and placed in the bottom of the list of that year shows that out of turn promotion even for regularization would not be dependent on the vacancies for that year and could be operated for regularization in the list operated in future.
21. The aforesaid interpretation, in our considered view, is the most reasonable and purposeful constructive interpretation of the provision, 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 findings 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 not 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.
Let a copy of this order be kept in the file of each case.
(Dr. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
San.