Bombay High Court
Sanjay Pandey vs State Of Maharashtra And Ors on 7 December, 2017
final wp 9140.14.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9140 OF 2014
Sanjay Pandey
I.P.S., B-102, Patliputra CHS Ltd.,
Four Bungalows, Andheri (West),
Mumbai 400 053. .. Petitioner
Vs.
1. State of Maharashtra
Through Government Pleader,
High Court, Appellate Side,
Mumbai.
2. Government of Maharashtra
Through the Chief Secretary,
State of Maharashtra,
Mantralaya, Mumbai 400 032.
3. The Additional Chief Secretary,
Ministry of Home Affairs,
Mantralaya, Mumbai 400 032.
4. Union of India,
(Through the Secretary,
Ministry of Home Affairs,
South Block, New Delhi 110 001.
and having office also at
Aayakar Bhavan, New Marine Lines,
Mumbai 400 020. .. Respondents
...........
Mr. N.H. Seervai, Senior Advocate along with Mr. Ranbir Singh
i/by Mr. Gunratan Sadavarte for the petitioner.
1/49
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Mr. Amit Borkar, Special Government Pleader along with Mr.
O.M. Kulkarni, AAGP, for respondents No.1 to 3.
Mr. Vinay Shankar Masurkar along with Mr. P.S. Gunjar and Mr.
S.G. Thakur for respondent No.4.
...........
CORAM : SMT. V.K. TAHILRAMANI &
M.S.KARNIK, JJ.
RESERVED ON : 16th NOVEMBER, 2017.
PRONOUNCED ON : 07th DECEMBER, 2017.
JUDGMENT (PER M.S. KARNIK, J.) :-
1. The petitioner by this Petition under Articles 226 &
227 of the Constitution of India prayed for quashing and setting
aside the order dated 03/03/2014 passed by the Central
Administrative Tribunal, Mumbai Bench, Mumbai and the order
dated 18/07/2014 passed by the Tribunal in the Review Petition
preferred by the petitioner. The petitioner had also prayed for
quashing and setting aside order dated 03/09/2014 passed by
the respondents putting the petitioner on compulsory wait. The
petitioner thereby claimed the relief that the respondents be
directed to immediately and forthwith consider the petitioner
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for promotion to the rank of ADGP effective from the date his
batch-mates were promoted to the said rank and in accordance
with law and to grant the petitioner all consequential benefits
accruing thereof.
2. During the pendency of the Petition, the respondents
issued an order dated 29/10/2016 which had the effect of
revoking the G.R. dated 15/02/2007. By G.R. dated
15/02/2007, the period from 12/04/2000 to 30/06/2002 was
regularized by granting extraordinary leave and his absence
from 01/07/2002 to 25/09/2006 was treated as on duty. By the
order dated 29/10/2016, the petitioner's absence from
12/04/2000 to 31/01/2003 was treated as dies-non. The
period from 01/02/2003 to 25/09/2006 was treated as on duty.
By this order dated 29/10/2016, it is further provided that as
the period from 12/04/2000 to 31/01/2003 is treated as dies-
non, the petitioner is eligible for grant of deemed date of
promotion to the post of Additional Director General of Police
('ADGP' for short) from 04/10/2014. In view of subsequent
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developments now the petitioner's grievance is limited to prayer
clause (b) of the Petition viz. consider the petitioner for
promotion to the rank of ADGP from the date his batchmates
were promoted and for consequential benefits and also for
quashing and setting aside the order dated 29/10/2016.
3. Before we proceed to state the facts, it would be
material to mention that the petitioner initially succeeded in OA
No. 1470 of 2003 before the Central Administrative Tribunal,
Delhi Bench. In compliance of the Tribunal's order dated
01/03/2005, the Tribunal while disposing of MA No. 1649 of
2006 filed by the respondents had observed that even after
filing Contempt Petitions, the petitioner's woes have not come to
an end and he is still waiting for his reinstatement and for other
consequential benefits. It is thereafter that by notification
dated 15/02/2007, the entire period from 12/04/2000 to
30/06/2002 came to be regularized by granting extraordinary
leave and the period from 01/07/2002 to 25/09/2006 was
treated as on duty. It is during the pendency of the present
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Petition when the issue of granting deemed date to the
petitioner for promotion as ADGP arose then the respondents
No.1 to 3 by the impugned order dated 29/10/2016 revoked the
order dated 15/02/2007, almost after 9 years. Relying upon the
decision of the Apex Court in the case of L.Chandrakumar
Versus Union of India reported in (1997) 3 SCC 261, learned
Counsel for the respondents No. 1 to 3 urged that the order
dated 29/10/2016 is required to be challenged before the
Tribunal in the first instance. In view of the fact that the
petitioner is litigating right from 2003 and had to take recourse
to so many proceedings to ventilate his grievance which was the
outcome of his resignation since set aside by the Tribunal as far
back as 2005, that we have examined the legality of the order
dated 29/10/2016 in this Petition. We are of the opinion that
once the order of the Tribunal confirmed by the High Court is
complied with and that to pursuant to filing of Contempt
Petition, after acting upon the order, revoking the order
unilaterally after 9 years is absolutely unjust and unfair to the
petitioner. The high handed manner in which the order dated
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15/02/2007 passed by the respondents No.1 to 3 themselves is
sought to be revoked leads us to infer that the respondents are
determined to rake up and reopen concluded issues only to
somehow deprive the petitioner the benefits of the Tribunal's
order dated 01/03/2005. The Petition has since been amended.
It is in this light of the matter that we are not inclined to accept
this objection of the learned Counsel for the respondents No.1 to
3 of relegating the petitioner to the Tribunal challenging the
order dated 29/10/2016.
FACTS OF THE CASE :
4. The petitioner belongs to the 1986 batch of Indian
Police Service. He was initially appointed as Assistant
Superintendent of Police and posted at Amravati in the year
1988. Thereafter he was posted as DCP of Zone VIII during the
communal riots of 1992-93 as also DCP, Economic Offences
Wing, Mumbai Police. He was promoted as Assistant Inspector
General in the Special Protection Group, New Delhi and
assigned with the task of providing security to the then Prime
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Minister of India. The petitioner was relieved from his posting
in the Special Protection Group on 12/04/2000 and was asked
to join his home cadre consequent to which he submitted his
resignation from service dated 12/4/2000.
5. The petitioner in the meantime submitted an
application for leave dated 19/04/2000 followed by subsequent
applications for leave dated 22/08/2001, 21/01/2002 and
01/04/2002.
6. Respondent No.2- State Government of Maharashtra
vide its letters dated 31/05/2000, 30/08/2000 and 31/07/2001
informed the petitioner that his resignation could not be
accepted for various reasons such as, his period of absence has
to be regularized, alleged monies due by the petitioner to the
respondents are yet to returned etc. By letter dated
22/08/2001, the petitioner expressed his inability to pay the
alleged outstanding dues and also prayed for withdrawal of his
resignation with immediate effect. The petitioner received a
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letter/notification dated 21/06/2012 from the respondents
accepting the petitioner's resignation from the Indian Police
Service with retrospective effect from 12/04/2000.
7. The petitioner challenged the notification dated
21/06/2002 by filing Original Application No.1470 of 2003
(hereinafter referred to as 'OA' for short) before the Principal
Bench, Central Administrative Tribunal, New Delhi ((hereinafter
referred to as 'the Tribunal' for short). The Tribunal by order
dated 01/03/2005 was pleased to allow the OA and thereby
quashed and set aside notification dated 21/06/2002. It would
be material to reproduce the operative portion of the order
passed by the Tribunal in OA/1470/2003 which reads thus :-
"In the result, for the foregoing reasons, this OA is allowed.
Order dated 21/6/2002 accepting the resignation of
applicant as well as order dated 30/1/2003, rejecting the
representation of applicant are set aside. As a consequence
thereof the applicant is directed to be re-instated in service
with effect from 13/4/2000 and would be entitled to all
consequential benefits in accordance with rules and
instructions on the subject. The respondent shall comply
with the aforesaid directions within a period of two months
from the date of receipt of a copy of this order. No order as
to costs."
8. At this stage it would also be material to note that
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one of the contention raised by the respondents was that the
petitioner was working in a private concern after submitting his
resignation. It would be material to quote para 17 of the order
of the Tribunal, which reads thus :-
"Para 17 :- It is also stated that request for withdrawal of
resignation was not addressed to the President but keeping
in fact that applicant during this interregnum was working
elsewhere, Government has decided to accept his resignation
while ignoring and not considering his request for
withdrawal of resignation. It is stated that there is no
provision in AIS (DORB) rules to withdraw the resignation."
(emphasis supplied)
9. In Writ Petition No.12804 of 2005 which was filed by
the respondents before the High Court of Delhi impugning the
said order dated 1/3/2005, the respondent No.1 - State of
Maharashtra raised the issue of the private employment of the
petitioner. It is pointed out that specific grounds and averments
in this regard were raised in the Writ Petition. The Delhi High
Court by the judgment and order dated 15/12/2005 was
pleased to confirm the order of the Tribunal and the Writ
Petition came to be dismissed.
10. It would be material to reproduce the relevant
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portion of para 4 of the order of the High Court, which reads
thus :-
"Para 4 :- ....It was also submitted that there was no letter
of withdrawal of resignation and since the resignation of the
respondent No.1 was accepted by a notification and since
respondent No.1 had joined a private company against the
rules of the Government, the order of the Tribunal was
totally erroneous and illegal, therefore, is required to be set
aside."
(emphasis supplied)
11. It would also be material to quote the relevant
portion of para 12 of the said judgment and order, which reads
thus :-
"Para 12 :- In order to appreciate the aforesaid contention,
reference is required to be made to the submissions made by
the petitioner before the Tribunal in their counter-affidavit.
In paragraph 19 of the said counter-affidavit the only
defence that was taken by the petitioner was that
considering the fact that respondent No.1 was working
elsewhere during his absence in violation of the rules, the
government decided to accept his resignation with effect
from 12.4.2000 ignoring or not considering his request for
withdrawal of resignation. This indicates that not only his
resignation was accepted from a retrospective date but also
on the ground that the respondent No.1 was working
elsewhere during his absence in violation of the rules. If in
case there was any violation of the rules by respondent No.1
that could be a case of misconduct for which separate
proceedings were required to be drawn up by the petitioner.
They should not have short-circuited the said procedure by
accepting the resignation which was withdrawn by
respondent No.1 by his conduct and by writing a letter to
one of the authorities."
(emphasis supplied)
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12. It is further recorded in the order of the High Court
that the submission made by the respondents that the said
withdrawal is inoperative is contrary to the stand taken by the
respondents in the counter-affidavit filed before the Tribunal
wherein it is specifically stated that since respondent No.1 was
working elsewhere during his absence in violation of the rules,
therefore, the Government decided to accept his resignation
with effect from 12/4/2000.
13. On failure of the respondents to comply with the
order of the Tribunal dated 1/3/2005, the petitioner filed
Contempt Petition No.78 of 2006. During the pendency of the
Contempt Petition the respondent No.1 produced the copy of the
order dated 16/5/2006 whereby the petitioner was reinstated in
service with effect from 12/4/2000 in compliance with the order
of the Tribunal. The Contempt Petition was disposed of by
observing as under :-
"Para 2 :- The Tribunal by the aforesaid order dated
1.3.2005 in OA No.1470/2003 has directed the respondents
to reinstated the applicant in service w.e.f. 12.4.2000, with
all consequential benefits. The applicant has been reinstated
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in service w.e.f. From 12.4.2000 by an order dated
16/5/2006. He has not been paid consequential benefits.
But the learned counsel for respondents has stated at the bar
that the consequential monetary benefits, would be paid to
him shortly as per rule in compliance with the order of the
Tribunal.
Para 3 :- Considering that applicant has been reinstated in
service with all consequential benefits, we are of the view
that the present contempt proceedings should not proceed
any further. Accordingly, we dismiss the C.P. Show cause
notice issued earlier stands discharged. We allow the
applicants to approach this Tribunal again, if necessary, after
3 months if consequential monetary benefits are not paid to
him."
14. The respondent No.1 filed Misc. Application ('M.A.'
for short) No.1649 of 2006 in O.A.No.1470 of 2003 before the
Tribunal seeking clarification of the order dated 1/3/2005.
According to the respondent No.1, the petitioner had not
reported for joining the duties and therefore, it is difficult for
them to accord the consequential benefits. Therefore, the
clarification was sought that pursuant to the reinstatement order
dated 16/5/2006, the petitioner has to report to the office of DG
of Police, Maharashtra and on joining the place of posting,
minimum three months' time is further to be accorded for grant
of consequential benefits. The Tribunal, however, recorded that
whenever the petitioner had gone to report for duty, no
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consequential action has been taken by the State of
Maharashtra. It would be pertinent to note here the observations
made by the Tribunal while disposing of the said M.A., which
reads thus :-
" However, this MA for clarification now filed before me, if
without jurisdiction, I cannot take cognizance of it. However,
as the matter is now lingering on for so many months and
with the result even after filing CP, the applicant's woes have
not come to an end and he is still waiting for his
reinstatement and for other consequential benefits, on the
consent of the parties, I dispose of this MA not for the
purpose of clarification but to dispense the justice in
accordance with Rules 25 & 27 of CAT (Procedure) Rules,
1987 with a direction to the respondents that in case the
applicant reports for duty to DG of Police, Maharashtra on
25.9.2006, he would be reinstated in pursuance of the order
dated 16/5/2006 and would be posted in accordance with
law. I also direct that pursuant to this posting, within two
weeks, applicant's consequential benefits, including back
wages, consideration for promotion, etc. would have to be
disbursed to him, with an intimation to the Tribunal in
writing."
(emphasis supplied)
15. The petitioner was reinstated by the respondents and
posted as Joint Commissioner (Vigilance), Food and Drug
Administration, Mumbai, vide order dated 25/9/2006. Learned
Senior Counsel submitted that he was not paid his consequential
monetary benefits and his seniority was not restored and that he
was posted only as Superintendent of Police while his batch-
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mates were Deputy Inspector of Police since 2003.
16. On 10/10/2006, the petitioner was served with the
show cause notice by the respondent No.1 calling upon him to
show cause as to why a departmental inquiry should not be
initiated against him for entering into private employment
without the authorization of the competent authority and why
the prescribed punishment for the said acts of omission and
commission should not be awarded to him.
17. The respondent No.1 by a notification dated 15th
February, 2007 was pleased to regularise the entire period of the
petitioner's absence. A decision was therefore taken by the
Government to the following effect :
"After returning from central deputation as per Shri
Sanjay Pandey's request dated 19/4/2000, 22/8/2001,
21/1/2002 and 1/4/2002 to consider this period as
extraordinary leave, extraordinary leave is being granted from
12/4/2000 to 30/6/2002 and his absence from 1/7/2002 to
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25/9/2006 is being treated as on duty." The said Government
Notification further provided that "An independent departmental
inquiry is under process regarding Shri Pandey having joined
private company after resigning from service. This regularization
is being done subject to the outcome of this inquiry."
18. The petitioner filed Contempt Petition No.1 of 2007
against the respondents before the Principal Bench, New Delhi
of the Tribunal for failing to pay him consequential monetary
benefits. The said Contempt Petition was disposed of as on the
statement made by the Counsel for the respondents that the
arrears of pay had been paid and even as regards his promotion
the Screening Committee has met and the appropriate steps
would be taken within two weeks. The Contempt Petition came
to be disposed of. Liberty was however reserved in favour of the
petitioner to agitate any grievance in case of necessity.
19. A memorandum dated 23/5/2007 was served on the
petitioner instituting a departmental inquiry on the allegation of
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the private employment of the petitioner between 12/4/2000 to
31/1/2003 without prior permission of the respondent No.1. By
an order dated 28th February, 2008, the respondent No.1 came to
the conclusion that though the petitioner had made some
irregularities, but it was not with the ulterior intention. The
petitioner, however, has shown his negligence. Therefore, the
Disciplinary Authority i.e. Government of Maharashtra has
decided that the petitioner be "Reprimanded" about his
negligence instead of continuing the department proceedings
against him. The Disciplinary Authority, therefore, dropped the
departmental inquiry initiated vide memorandum dated 23 rd
May, 2007.
20. Despite the statements and assurances given by the
respondents before the Tribunal in Contempt Petition No.1 of
2007, the petitioner was neither promoted nor paid his
consequential monetary benefits and right from 18/6/2007 the
petitioner was kept on 'compulsory wait' without any posting,
promotion, salary, consequential benefits, housing, staff or any
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other benefits accorded to him. Learned Senior Counsel submits
that in the meanwhile his batch-mates and seniors were
promoted to the rank of Inspector General.
21. It would be very pertinent to appreciate that by a
communication dated 25th September, 2008 addressed by the
respondent No.1 - State of Maharashtra to the respondent No.4
- Union of India as regards the suggestion of the Government of
India for treating the period from 12.4.2000 to 31/1/2003 i.e.
period of private employment of the petitioner as dies non and
not to include the said period towards counting of service, the
State of Maharashtra responded that the same will be against
the decision of the Tribunal and will cause Contempt of Court
and it will not be possible to defend the action of Government.
22. The petitioner approached the Central
Administration Tribunal, Mumbai, by filing O.A.No.288 of 2010
seeking a direction that the respondents consider the petitioner
for 'Proforma promotion' to the rank of DIG and Special IG from
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the date his immediate juniors had been promoted. It would be
pertinent to mention that respondent No.1 in its defence before
the Tribunal raised the issue of private employment of the
petitioner. The Tribunal by the order dated 9/5/2011 allowed
the O.A. and directed the respondents No. 1 to 3 to give a
suitable post to the petitioner at the level of D.I.G. within a
period of one month from the date of receipt of the copy of the
said order and also directed the respondents to convene the said
review DPC to consider the promotion of the petitioner to the
level of Special I.G. It would be material to reproduce that in
para 4 of the order of the Tribunal, it is recorded that a charge-
sheet dated 23/5/2007 was served on the petitioner for having
joined M/s. Tata Consultancy Services, Mumbai, without prior
permission of the State Government. Subsequently, the
Government of Maharashtra set aside the charge-sheet vide
order dated 28/2/2008. Even the stand of the respondent at
para 7 reflects that the Government of Maharashtra dropped the
disciplinary proceedings initiated against the petitioner and
decided that he be reprimanded for his negligence instead of
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continuing departmental proceedings against him for having
accepted private employment with M/s. Tata Consultancy
Services till January, 2003. It was indicated that the Government
of Maharashtra had implemented the decision of the Principal
Bench of the Tribunal regarding reinstatement with back-wages
and promotion to the petitioner.
23. As the order dated 9th May, 2011 was not complied
by the respondents, the petitioner was constrained to file
Contempt Petition No.53 of 2011 before the Tribunal on 20 th
June, 2011.
24. In the meantime on 10th August, 2011, the
respondents challenged the impugned order of the Tribunal
dated 9/5/2011 before this Court by filing Writ Petition No.7026
of 2011. Even in this petition the issue of private employment of
the petitioner was raised. This Court in para 11 had observed
that "the competent authority had taken a decision not to accept
the notice of voluntary retirement of the respondent since the
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disciplinary proceedings were initiated against him, but these
proceedings came to an end by the order dated 28/2/2008
passed by the Government of Maharashtra withdrawing the
memorandum dated 23/5/2007." This Court, thus, confirming
the order passed by the Tribunal directed that the petitioner
shall be entitled for his salary as D.I.G. and his salary from the
date he has been kept on compulsory wait list shall be paid
along with arrears within two weeks from 21/11/2011.
25. The petitioner had to file a Contempt Petition No.
277 of 2012 in this Court alleging the breach of the order dated
21/11/2011 passed by this court. Thereafter, by an order dated
15th December, 2011, the petitioner was posted as DIG. The
respondent No.1 was also paid his salary and other arrears in
March/April, 2012. In this view of the matter, the petitioner
withdrew the said Contempt Petition.
26. Thereafter in compliance with the order dated 9 th
May, 2011 passed by the Tribunal respondents convened a
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review DPC meeting on 8th February, 2012. The petitioner was
found 'unfit' for promotion to the rank of Spl. IG on the ground
that no Annual Confidential Reports (ACRs) were available.
Learned Senior Counsel contended that this was a malicious
reason as the respondents themselves had kept the petitioner on
compulsory wait for more than four years. The decision
declaring him 'unfit' was communicated to the petitioner by an
order dated 8th May, 2012.
27. The petitioner made several representations against
the decision finding him 'unfit' for promotion and the manner in
which such finding was arrived at.
28. The petitioner being aggrieved by the decision dated
8th May, 2012 filed O.A.No.21 of 2013 before the Tribunal and
sought Proforma Promotion on par with his batch-mates and
immediate juniors, who had by now, attained the rank of ADGP.
29. The Review Screening Committee at its meeting
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dated 23/12/2013 found the petitioner 'fit' for promotion to the
post of Spl. IG. The respondent No.1 granted its approval to the
recommendation of the Review Screening Committee and the
Chief Minister granted his approval on 15/1/2014. O.A. No.21
of 2013 was heard and judgment was reserved and the matter
was closed for orders on 31st January, 2014. Before the O.A. was
decided the petitioner was promoted to the rank of Spl. IG as
per the promotion orders issued by the respondent No.1 on
15/1/2014. The petitioner took over the charge as Spl. IG of
Police at the State Human Rights Commission on 17 th February,
2014. It is the petitioner's contention that even when he was
promoted to the rank of Spl. IG, more of the petitioner's juniors,
batch-mates were promoted to the rank of ADGP. This aspect
was brought to the notice of the Registrar, CAT, by the petitioner
vide communication dated 21st February, 2014.
30. O.A.No. 21 of 2013 was disposed of by the Tribunal
on 3rd March, 2014 and the same was partly allowed. The
Tribunal held that the finding of the DPC in concluding that the
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petitioner was 'unfit' for promotion to the rank of Sp. IG was
unsustainable. The Tribunal held that having kept the petitioner
on compulsory wait more than 4 ½ years from 18/6/2007 to
15/12/2011 for which the petitioner was not at fault, the
Government cannot hold the ground on non-availability of
ACR/AOAR against the petitioner in the matter of his
promotion. The Tribunal was of the opinion that if fresh review
DPC considers the petitioner fit for promotion, it will take effect
from the date on which his junior officers were promoted to the
said post. The Tribunal also took into consideration the
petitioner's letter dated 21/2/2014 about his juniors being
promoted to the rank of ADGP. According to the Tribunal, the
question of petitioner's promotion to the post of ADGP would
arise only on his promotion to the Special IGP. Therefore, the
Tribunal was not inclined to consider the petitioner's prayer for
promotion to the post of ADGP. The Tribunal, therefore,
directed the respondents to hold a fresh review DPC for
considering the claim of the petitioner for promotion to the post
of Inspector General of Police in the light of the aforesaid
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observations by the Tribunal. The Review Application No.20 of
2014 filed by the petitioner came to be dismissed on 18 th July,
2014.
31. The petitioner by a communication dated 20/2/2014
addressed to the respondent No.1 pointed out that for
promotion to the rank of ADGP requires 25 years of regular
service. The petitioner had completed 25 years of regular
service and therefore, not considering him for rank of ADGP and
promoting his juniors over and above him is grossly unjust.
32. Thereafter, by a representation dated 25th June,
2014, the petitioner pointed out that upon going through the
Minutes of the meeting of DPC held on 14 th February, 2014 and
perusal of the same discloses complete fraud and manipulation
in order to deny him his rightful dues. In support of his
allegation of manipulations and ulterior machinations, it is
stated by the petitioner in his representation dated 25 th June,
2014 as under :-
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"a. As per the record, DPC met on 14 th February. However,
para 9 (C) mentions that "..Shri Pandey is promoted in rank
of Spl. Inspector General of Police vide order dated
15.2.2014." From this it is clear that the meeting took place
on or after 15th February, as the facts of 15 th February would
not have been known to the DPC on 14th February, 2014.
b. Paragraph subsequent to this in the DPC minutes of Feb.
14th 2014, states that since I was till DIG, promoting me to
the rank of ADG will amount to me directly becoming ADG
without serving in the rank of IG. This reasoning, in view of
the fact that the DPC already knew I was IG as on 15 th
February 2014, was clearly fraudulent and appears to have
been incorporated to ensure that I did not get promoted and
other juniors were promoted.
It is clear that the minutes have been fraudulently
and maliciously ante dated to 14 th February, 2014 in order to
give credence to this baseless logic of double promotion. Any
date after 14th February, 2014 would have made this
hypothesis of DPC, baseless. Even more surprising is the fact
that in pursuance of these minutes which clearly appear to
be manipulated, views of departments are being sought on
issue of double promotion, when today I am serving as IG.
This is notwithstanding the fact that there is no such rule
barring double promotion mentioned in ALL India Service
rules. Rules only indicate eligibility and the DPC minutes too
in para 9 (C) clearly states that I was eligible to be promoted
as ADG."
33. The petitioner thereafter was served with an order
dated 3rd September, 2014 informing him that he has been kept
under compulsory wait. The petitioner filed the present Petition
on 29th September, 2014. On 4th October, 2014, the petitioner
received an order issued by the respondents posting him as
Controller, Weights and Measures in the rank of Sp. IGP. By an
order dated 4th November, 2014, the respondent No.1 issued a
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Government Notification dated 4th November, 2014 by virtue of
which the petitioner was deemed to have been promoted to the
rank of Sp.IG with effect from 18th June, 2008.
34. The DPC thereafter in its meeting dated 5th February,
2015 recommended the promotion of the petitioner to the post
of ADGP. The petitioner, thereafter, was promoted to the post of
ADGP with effect from 19/3/2015. This Court passed following
order on 24th April, 2015 :-
"Stand over to 23 June 2015, as the statement is made by
the learned AGP, on the basis of written communication
dated 22 April 2015 that, the date of appointment of the
Petitioner to the post of ADGP is under re-consideration,
therefore, seeking further time. Written communication
dated 22 April 2015 is taken on record and marked 'X' for
identification.
2. By keeping all points open, at this stage, we are inclined
to grant time till 23 June 2015."
SUBMISSIONS OF LEARNED SENIOR COUNSEL FOR THE
PETITIONER.
35. Learned Senior Counsel for the petitioner submits
that unknown to the petitioner, a proposal for "deemed date" to
the post of ADGP with respect to the petitioner was submitted to
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the Government on 4/4/2015. The averments in the affidavit
dated 16/11/2015 would reveal that the GAD had purportedly
opined for review or extraordinary leave granted to the
petitioner vide order dated 15th February, 2007. A meeting under
the Chairmanship of the Chief Secretary, Government of
Maharashtra, was held on 9th September, 2015 in which it was
purportedly decided to proceed with as per the opinion of the
GAD.
36. It appears that the issue of deemed date of
promotion of the petitioner to the post of ADGP was under
consideration and therefore the present Petition came to be
adjourned. In the affidavit dated 16/11/2015, respondent No.1
took a stand that issue of deemed date is linked with the review
of his extra ordinary leave and once the issue of review of extra
ordinary leave is resolved the respondent No.1 shall process the
matter of allotting him a deemed date. It was indicated that if
the period of extra ordinary leave is treated as dies-non, it will
have effect on the deemed date of the petitioner's appointment
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as ADGP.
37. On 24/10/2016, a statement was handed over to
this Court to the effect that issue of deemed date had been
considered by respondent No.1 and the petitioner was granted a
deemed date of promotion as ADGP from 04/10/2014 and not
from 20/06/2012. By order dated 29/10/2016, the
Government Resolution dated 15/02/2007 by which the
petitioner's period of absence had been regularzied was
cancelled. The petitioner's absence from 12/04/2000 to
31/01/2003 was treated as 'dies-non' and the period from
01/02/2003 to 25/09/2006 was treated as 'on duty'. This order
further holds that the petitioner is eligible to be promoted to the
post of Additional Director General of Police from 04/10/2014.
Thus, his deemed date for promotion to the Addition DG was
fixed as 04/10/2014. The said order further provides that as
the period from 12/04/2000 to 31/01/2003 is treated as dies-
non, excess payment, if any, made due to the Government Order
dated 15/02/2007 would be recoverable from the petitioner.
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38. The petitioner filed application for amendment of
the present Writ Petition on 25/11/2016 and brought on record
the subsequent events and also challenged the order dated
29/10/2016. The application for amendment came to be
allowed on 04/01/2017 and accordingly the Petition came to be
amended.
39. In the meantime it was noticed that the DPC for
promotion to the rank of the Director General of Police (DGP for
short) was held on 30/12/2016. On bringing these facts to the
notice of this Court, assurance was given to this Court as well as
the petitioner by learned Counsel representing respondent No.1
that one vacancy (DGP) would not be filled in till next date of
hearing.
40. Learned Senior Counsel appearing on behalf of the
petitioner assailed the order dated 29/10/2016 as being ex-
facie, illegal and bad in law. In his submission, order dated
29/10/2016 purports to review the order dated 15/02/2007. In
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his submission, the said order is passed in fragrant violation of
principles of natural justice as no opportunity of hearing is given
to the petitioner before the impugned order was passed.
Learned Senior Counsel further submits that there is no power
to review the order dated 15/02/2007.
41. Learned Senior Counsel further submits that the
minutes of the meeting dated 14/02/2014 are fabricated which
is ex-facie evident from mere reading of minutes themselves.
The minutes dated 14/02/2014 refer to the petitioner having
been promoted to the rank of Special IG by an order dated
15/02/2014. In his submission, it is obvious that meeting of
DPC could not have been held prior to 15/02/2014.
42. Learned Senior Counsel further submits that order
dated 15/02/2007 granting extra ordinary leave to the
petitioner was passed after a conscious decision was taken by
respondent No.1 pursuant to the order passed by the Tribunal in
Contempt Petition No. 78 of 2006 wherein it was observed by
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the Tribunal that the petitioner's woes have not come to an end
and he is still awaiting reinstatement and other consequential
benefits. In the submission of learned Senior Counsel it is
obvious that order dated 15/02/2007 was cancelled almost after
9 years only with a view to deprive him of the benefits of
appropriate deemed date as ADGP to which he was otherwise
entitled. In his submission, the petitioner was harassed at every
stage and it is almost for every entitlement, the petitioner had to
initiate appropriate legal proceedings. Learned Senior Counsel
would further submit that despite the orders passed by the
Tribunal and this Court on so many occasions, it is only pursuant
to the filing of Contempt Petitions, the orders came to be
complied with.
43. In the submission of the learned Senior Counsel, for
promotion to the rank of ADGP, the only requirement is
completion of 25 years of regular service. In the submission of
learned Senior Counsel if the impugned order dated
29/10/2016 is quashed and set aside then automatically
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petitioner is entitled for deemed date of promotion as ADGP
from 20/06/2012 as per the own showing of the respondents.
Learned Senior Counsel submits that it is only to deny the
petitioner his rightful claim that concluded issues are raked up
by respondent No.1 on one pretext or other and the petitioner is
made to litigate endlessly.
SUBMISSION OF LEARNED COUNSEL FOR RESPONDENTS
44. Learned Counsel for respondents No.1 to 3 Mr.Amit
Borkar contended that the impugned order dated 29/10/2016 is
passed in accordance with law in as much as the respondent
No.1 justified in treating the petitioner's period of absence from
12/04/2000 to 31/01/2003 as dies-non and accordingly his
deemed date for promotion to ADGP came to be fixed as
04/10/2014. In his submission, as the order dated 29/10/2016
is passed during the pendency of this Petition, it affords a fresh
cause of action to the petitioner and therefore, the petitioner is
required to challenge this order before the appropriate forum
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which is the Tribunal. He relied upon the decision of the Apex
Court in the case of L. Chandrakumar (supra) and Union of
India Vs. Major General Shri Kant Sharma and anr. (2015) 6
Supreme Court Cases 773 in support of his contention that the
petitioner has to first approach the Tribunal for getting the order
dated 29/10/2016 adjudicated.
45. Shri Borkar further submits that as the notification
dated 15/02/2007 regularizing the entire period of absence of
the petitioner was wrong and contrary to the provisions of law,
the respondent No.1 was therefore justified in exercising powers
of review to revoke the said illegal order. In the submission of
Mr.Borkar as excess payments have been made to the petitioner
to which he is not entitled, the same are sought to be recovered
by this order.
46. Mr.Borkar was at pains to point out that the
petitioner was in private employment which period had to be
treated as dies-non and therefore order dated 29/10/2016
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cannot be said to be erroneous and contrary to law. In the
submission of Mr.Borkar as the period of private employment
has to be treated as dies-non, the benefit of this period cannot
be given to the petitioner for counting towards 25 years of
regular service.
47. Shri Borkar invited our attention to the Indian Police
Service (Pay) Rules, 2007 (hereinafter referred to as the 'Pay
Rules of 2007') more particularly Note 5 to Rule 3 which
provides for the pay bands and grade pays admissible to a
member of the service and the dates with effect from which the
said pay bands and grade pays shall be deemed to have come
into force. Note 5 deals with the issue of extraordinary leave
with regard to eligibility period of service required for
appointment to various grades provided therein.
48. In support of his contention that respondent No.1
can review its own orders, he has relied upon the decision of the
Apex Court in the case of Vinod Kumar Vs. State of Haryana
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and ors. (2013) 16 Supreme Court Cases 293.
49. Mrs.Neeta Masurkar, learned Counsel for respondent
No.4 - Union of India supported the stand of Mr.Borkar and
advanced similar contentions.
ANALYSIS
50. We now proceed to analyse the submissions of the
learned Counsel. OA/21/2013 was filed before the Tribunal
seeking promotion to the rank of ADGP with effect from the date
of promotion of the petitioner's batch-mates. The petitioner was
denied the promotion on the basis of DPC report dated
08/05/2012. This report was set aside by the Tribunal by the
impugned order. The Tribunal had directed the respondents to
consider petitioner's claim for promotion to the rank of Special
IG, further holding that to consider the petitioner for the post of
ADGP, the respondents would first need to appoint him as
Special IG. By notification issued in November 2014, the
respondents gave effect to the direction of the Tribunal stating
that the petitioner stood appointed to the post of Special IG with
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effect from 18/06/2008. The minutes of the meeting of DPC
record that the meeting took place on 14/02/2014. However,
minutes of meeting dated 14/02/2014 referred to the petitioner
having been promoted in the rank of Special IG by order dated
15/02/2014.
51. We find substance in the contention of the learned
Senior Counsel Mr.Seervai that meeting of the DPC could not
have been held prior to 15/02/2014. DPC which met on
14/02/2014 did not recommend the petitioner for promotion to
the rank of ADGP though his name was considered for such
promotion along with IPS officers who were junior to him solely
on the ground that as the petitioner at the point of time of
consideration by DPC was holding the post of DIG and not
Special IG. This was on the premise that to recommend his
name for promotion to ADGP would constitute double
promotion i.e. direct promotion to the post of ADGP without
first having served in the rank of Special IG. Learned Senior
Counsel has alleged malafide action of the respondents thereby
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victimizing the petitioner. The minutes of meeting held on
14/02/2014 according to him are antedated to which there is no
satisfactory explanation. We do not find a satisfactory
explanation is offered by the respondents to this submission of
learned Senior Counsel. In our opinion, ends of justice would be
met if the DPC is reconvened to consider the case of the
petitioner for recommending his promotion as ADGP along with
IPS officers who were junior to him on the footing that he was
holding the post of Special IG with effect from 18/6/2008. To
that extent the order passed by the Tribunal calls for
interference.
52. Insofar as the challenge to the order dated
29/10/2016 by which the order dated 15/02/2007 is sought to
be revoked, admittedly, the impugned order has been passed
without hearing the petitioner. The said order is passed in
breach of principles of natural justice and without giving any
opportunity to the petitioner of being heard. By the order dated
15/02/2007 period from 12/04/2000 till 30/6/2002 was
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regularized by granting extraordinary leave and the period from
01/07/2002 till 25/09/2006 was considered as 'on duty'.
Learned Counsel for the respondents No.1 to 3 in all fairness
submitted that the order dated 29/10/2016 is passed without
giving any opportunity of hearing to the petitioner. He therefore
suggested that respondents No. 1 to 3 are willing to hear the
petitioner and then pass a fresh order. In ordinary course, we
would have considered this request as reasonable. However,
looking at the facts and the history of the litigation and the
opinion formed by us set out in para 3 of this order, we are of
the view that it would not be in the interest of justice to adopt
this course.
53. The reason mentioned in the impugned order is, the
period from 12/04/2000 till 31/01/2003 is treated as dies-non
as the petitioner had taken private job. In our opinion, it was
too late in the day for the respondents to have revoked the order
dated 15/02/2007 almost after 9 years. Secondly despite
raising specific plea of private employment before the Tribunal
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and this Court, reinstatement was granted from 12/04/2000
onwards with all consequential benefits. The period of private
employment was regularized by granting extraordinary leave to
the petitioner and regularizing rest of the period as period spent
on duty. The respondents had raised the specific contention as
regards private employment before the principal bench of the
Tribunal in OA/1470/2003. Even before the Delhi High Court
the issue of private employment of the petitioner was raised and
specific averments in this regard were made despite which the
Delhi High Court confirmed the order passed by the Tribunal. It
is upon filing of Contempt Petition 78 of 2006 that respondents
issued the order dated 16/05/2006 whereby the petitioner was
reinstated in the service with effect from 12/04/2000. However
he was not actually reinstated. In the application for
modification of order dated 01/03/2005 filed by the
respondents seeking certain clarification, the Tribunal was
pleased to record that the woes of the petitioner have not come
to an end and he is still waiting for his reinstatement and for
other consequential benefits. The petitioner was actually
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reinstated vide order dated 25/09/2006. Thereafter, show-
cause notice dated 10/10/2006 was issued to the petitioner for
initiating departmental enquiry for entering into private
employment without authorization of the Competent Authority.
Respondent No.1 by order dated 15/02/2007 [which is now
sought to be cancelled by the impugned order] regularized
entire period when petitioner was not on duty. The said order
further provided that an independent departmental enquiry is
under process against the petitioner for joining private
employment after resigning from the service. Again the
petitioner had to file Contempt Petition on 01/05/2007 for grant
of consequential monetary benefits and for consideration of his
case for promotion. By order dated 23/05/2007, the
departmental enquiry was instituted on the allegation of private
employment of the petitioner between 12/04/2000 to
31/01/2003 without prior permission of respondent No.1. On
28/05/2007, the said enquiry was dropped and closed by
respondent No.1 with a token order of reprimand. In this light
of the matter, not only period when the petitioner was not on
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duty is regularized by granting extraordinary leave to the
petitioner but even order of the Tribunal is categoric that he is
reinstated with effect from 12/04/2000. Not only this but even
the issue of private employment was concluded by dropping the
enquiry after reprimanding the petitioner.
54. It would be also pertinent to note that the
communication dated 25/09/2008 addressed by respondent
No.1 to respondent No.4 wherein in clear terms it has been
recorded thus :
"In these circumstances now as suggested by Government of
India if the period from 12.04.2000 to 31.01.2003 i.e. period
of private employment of Shri Pandey is treated as 'dies-non'
and not included for counting of service it will be against the
decision of the Hon'ble Tribunal and will cause the Contempt
of Court and it will not be possible to defend the action for
this Government. As Shri Pandey has completed 20 years of
service in December, 2006 after counting his absence as a
duty period as per Hon'ble C.A.T decision, he has given the
notice for voluntary retirement. So at this stage, it will not
be possible to take action under rule 7(2)(a) of A IS (leave)
rules 1955 as per D.O.P. T. notification dated 19.03.2017."
55. At this juncture, it would also be material to note
that in the affidavit dated 16/03/2016 filed by Shri Mukesh
Sawhney on behalf of respondent No.4 - Union of India, it is
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mentioned that the Government of Maharashtra by letter dated
15/12/2015 had stated if complete period from 12/04/2000 to
31/01/2003 of private employment of Sanjay Pandey is treated
as dies-non, it would cause contempt of Court. It is further
recorded that as the petitioner has been promoted in the grade
ADGP by order dated 01/03/2015, the State of Maharashtra was
considering the proposal of assigning the petitioner deemed date
of promotion as ADGP. The State Government had therefore
requested the respondent No.4 to confirm the view to treat the
above period as dies-non so the State Government is able to
decide the grade of ADGP. In paragraph 8 of the affidavit filed
by respondent No.4 - Union of India, it is mentioned that
though the Tribunal had granted reinstatement, no directions for
regularization of the period of absence was mentioned and
further, the period of private employment was not brought to
the notice of the Tribunal during the proceedings before the
Tribunal. Therefore, according to respondent No.4, submission
of the State Government that treating the period of dies-non
amounts to non-compliance of the directions of the Tribunal is
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not correct. The Union of India intimated to the State
Government - Respondents No. 1 to 3 by letter dated
11/02/2016 that period should be treated as dies non.
56. Thereafter, by an affidavit dated 16/03/2016
unconditional apology was tendered by respondent No.4 by
pointing out - "period of private employment of the petitioner
not being brought to the notice of the Tribunal" was mentioned
inadvertently. It is further mentioned in the affidavit that as no
directions are there as to how the period of private employment
is to be treated, the said period should be treated as dies-non.
57. In our opinion, re-opening the matter almost after 9
years is unjust, unreasonable and arbitrary thereby serious
prejudice is caused to the petitioner. In compliance with the
directions of the Tribunal and the High Court the order dated
15/02/2007 was passed granting extraordinary leave to the
petitioner treating the period as on duty. In the facts of the
present case, it was not permissible for the respondents to have
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reviewed the order dated 15/02/2007 after almost 9 years and
that too in utter disregard to the principles of natural justice.
The issue as regards treating the period of absence was already
concluded by granting extraordinary leave and even the aspect
regarding punishment for taking up private employment without
the Competent Authority's permission was closed by
reprimanding the petitioner and therefore also it was not
permissible for the respondents to have at this belated juncture
treated the period of private employment of the petitioner as
dies-non. As indicated earlier the order dated 29/10/2016 was
passed in compliance of the Tribunal & Delhi High Court's order.
In the several rounds of litigation which followed after 2007,
this issue was never raised and in fact as far back as in 2008 the
respondents No. 1 to 3 were conscious that treating this period
as dies-non will cause contempt of Court. Even in 2016, the
respondents No.1 to 3 reiterated this position. It is apparent that
the decision is taken by the respondents No.1 to 3 only upon the
insistence of respondent No.4. The impugned order dated
29/10/2016 is therefore required to be quashed and set aside.
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58. During the pendency of this Petition, the petitioner
was promoted as ADGP with effect from 19/03/2015. A
statement was made on behalf of the respondent No.1 that the
deemed date of appointment of the petitioner to the post of
ADGP was under active consideration. It is during the hearing
of this Petition that the order dated 29/10/2016 came to be
passed and order of 15/02/2007 by which the petitioner's
period of absence has been regularized was cancelled. The
order records that the period from 12/04/2000 to 31/01/2003
being treated as dies-non, deemed date for promotion as
additional DG was accordingly fixed as 04/10/2014.
59. Admittedly, for promotion to the post of ADGP
requirement is 25 years of regular service. The communication
dated 02/12/2014 addressed by the respondent No.4 to
respondent No.1 clearly mentions that as per guidelines, for the
post of ADGP, the IPS officers in different grade who put in 25
years of service are eligible for consideration of promotion to the
grade of ADGP. It is further mentioned that the petitioner
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appears to be entitled for consideration in the rank of ADGP,
however, respondents No. 1 to 3 were requested to ensure about
completion of 25 years of service keeping in view the petitioner's
period of private employment from 12/04/2000 to 31/01/2003.
The period from 12/04/2000 to 31/01/2003 is treated as dies-
non as a result thereof the petitioner was granted deemed date
of promotion as ADGP with effect from 02/12/2014. As we
have held that the respondents are not justified in treating the
period from 12/04/2000 to 31/01/2003 as dies-non, in view of
setting aside the order dated 29/10/2016, this period from
12/04/2000 to 31/01/2003 has to be counted towards regular
service. It is a matter of record that respondents No.1 to 3 as
far back as on 25/09/2008 clearly indicated to respondent No.4
that if the period from 12/04/2000 to 31/01/2003 i.e. period of
private employment of the petitioner is treated as dies-non and
not included for counting of service, it will be against the
decision of the Hon'ble Tribunal and will cause the contempt of
Court and it will not be possible to defend the action for this
Government.
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60. It has come on record that as the petitioner has
completed qualifying service of 25 years, the Review Committee
in its meeting dated 05/02/2015 found him fit for post of ADGP
on which basis he was promoted with effect from 19/03/2015.
However, as the petitioner worked in private service from
12/04/2000 to 31/01/2003, this period was treated as dies-non,
he was granted deemed date as ADGP from 02/12/2014 and not
20/06/2012.
61. During the pendency of this Petition as the petitioner
was due for consideration for promotion as DGP, a statement
was made on behalf of the respondents no.1 to 3 that one post
of DGP would be kept vacant. The petitioner's case for
promotion needs to be considered accordingly.
62. In our opinion, reliance placed by Mr.Borkar on
Note 5 to Rule 3 of the Pay Rules of 2007 is completely
misconceived. The issue involved in the present Petition is
whether the period of the petitioner's absence for having taken
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private employment should be treated as period spent on duty.
For the misconduct of taking private employment without
permission of the Competent Authority, the petitioner was
proceeded with departmentally and he has been punished with
an order of reprimand. Moreover, this period was already
regularized in compliance with the order of the Tribunal.
Hence, the following order.
O R D E R
i) The order dated 29/10/2016 passed by the respondent
No.2 is quashed and set aside, consequently, the
respondents are directed to grant to the petitioner
deemed date as Additional Director General of Police from
20/06/2012.
ii) The respondents are directed to convene a fresh DPC
within a period of 4 weeks from today to consider the case
of the petitioner for promotion as ADGP along with IPS
Officers who were junior to him on the footing that the
petitioner is appointed to the post of Special IG with effect
from 18/06/2008.
iii) Upon consideration of the petitioner's case if the petitioner
is found eligible for promotion as ADGP before
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20/06/2012, he may be given that date of promotion,
otherwise the deemed date of promotion in the rank of
ADGP as 20/06/2012 will stand.
iv) After completion of the exercise in clauses (ii) and (iii) of
the operative part, within six weeks thereafter the
petitioner's case for promotion as DGP (Director General
of Police) be considered in accordance with law.
63. Rule is accordingly made absolute with no order as
to costs.
(M.S.KARNIK, J.) (SMT. V.K.TAHILRAMANI, J.)
