Constable Ashok Kumar vs Lt. Governor Of Delhi And Ors.
2005 Latest Caselaw 1051 Del

JUDGMENT

Sanjiv Khanna, J.

1. The present writ petition is directed against the Order passed by the learned Central Administrative Tribunal dated 29.5.2003 in Original Application No. 455/2001. By the impugned order, the learned Tribunal has dismissed the said Application filed by the petitioner herein asking for declaration that the show cause notice and the orders passed holding that the petitioner's name be deleted from the promotion list `B'(Technical).

2. On 6.9.1995, a departmental enquiry was instituted against the petitioner on the ground that he had willfully and unauthorisedly absented himself from duty on several occasions. The disciplinary authority imposed penalty and the appeal filed by the petitioner was also dismissed. Thereafter, show cause notice dated 11.6.1997 was issued to the petitioner stating that he had failed to satisfactorily conduct and do his work and therefore why his name should not be removed from the promotion list `B' (Technical Grade II Driver). The petitioner filed his reply but the Additional Commissioner vide his order dated 11.4.2004, held that the petitioner had failed to work and conduct himself satisfactorily and therefore his name should be removed from the aforesaid list. The Commissioner of Police and Lt. Governor confirmed the above order.

3. The petitioner challenged the aforesaid show cause notice and the order removing his name from the promotion list before the Central Administrative Tribunal. As already stated above, the learned Tribunal has dismissed the Original Application filed by the petitioner.

4. We have heard the learned counsel appearing for the petitioner and the respondents. The counsel for the petitioner submitted that the petitioner had been promoted as a Head Constable (Driver) under Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 (hereinafter referred to as 'the Rules', for short) with effect from 4.11.1994 and therefore the order directing removal of petitioner's name from the promotion list `B' (Technical) is illegal and bad in law.

5. The learned counsel appearing for the respondent however, submitted that promotion under Rule 19(ii) of the aforesaid rules and the removal of the petitioner's name from the list of eligible promotees i.e promotion list `B' (Technical), are two separate and independent issues. It is submitted that the petitioner was promoted under Rule 19(ii) of the Rules, on purely temporary and on ad hoc basis.

6. In our considered view there is no merit in the present petition. It is no doubt true that the petitioner was promoted as a Head Constable (Driver) with effect from 1.4.1994 under Rule 19(ii) of the Rules, but the said promotion was purely on temporary and ad hoc basis. This is clear from the publication in the Delhi Police Gazette dated 5.11.1994. This is the reason why the petitioner's name had been included in the Promotion List `B'(Technical Grade-II Driver) with effect from 27.1.1995 for promotion.

7. Under Rule 7(ii) of the Rules, conduct and efficiency of officers on promotion list is to be constantly watched at all times. An officer's name may be removed from a promotion list, if found guilty of misconduct of the nature reflecting upon his character or fitness or responsibility or otherwise shows that he is unfit for promotion to the higher rank. The procedure prescribed for removal of a name requires a report to be made to the Deputy Commissioner of Police (HQ) and final decision is to be taken by the appointing authority after giving show cause notice to the individual.

8. Admittedly in the present case show cause notice dated 11.6.1997 was issued and the petitioner was given an opportunity to give his reply and thereafter order dated 11.4.2004 was passed removing his name from the promotion list `BG' (Technical). Thus, the procedural requirements have been followed before deleting the name of the petitioner from the promotion list.

9. We do not think that ad hoc temporary promotion of the petitioner as Head Constable (Driver) under Rule 19(ii) of the Rules, imposes any embargo or bar upon the authorities from deleting the name of a person mentioned in a promotion list, if requirements of Rule 7(ii) of the Rules are satisfied. It may be mentioned here that the aforesaid promotion under Rule 19(ii) was purely temporary and on ad hoc basis and not a regular promotion. We have also been informed at the Bar that proceedings have been separately initiated by the respondents for withdrawing the said promotion given under Rule 19(ii) of the aforesaid rule.

10. With regard to the action under Rule 7(ii), the learned Tribunal has examined all aspects and has come to the conclusion that all procedural requirements were fully complied with and that it cannot sit in appeal and re-examine the evidence on merits against the petitioner. The Additional Commissioner of Police has in Order dated 11th April, 2000 examined various factual aspects of the matter and has come to the conclusion that the petitioner had failed to do his work and conduct himself satisfactority after his name was included in the promotional list "B" (Technical) (Grade-II Driver) as required under Rule 7(ii) of the Rules. He was, therefore, of the opinion on the basis of evidence and material on record that the petitioner was unfit for promotion to the higher rank. Learned counsel for the petitioner has not been able to assail the findings and observations made by the Tribunal in this regard.

11. In view of the aforesaid, we do not find any merit in this writ petition and the same is dismissed, leaving the parties to bear their own costs.