Asi Devender Kumar vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 2656 Del

*               HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 8841/2008

                        Judgment reserved on: July 09, 2009
%                       Judgment delivered on: July 16, 2009

      ASI Devender Kumar                               ..... Petitioner

                        Through: Mr. Sourabh Ahuja, Advocate

                Versus
      Govt. of NCT of Delhi & Ors.                 ..... Respondents

                        Through: Mr. J.K.Chaudhary, Adv. for Mr.Aditya
                                 Madan, Advocate
      Coram:

      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?                       Yes

      2. To be referred to Reporter or not?                    Yes

      3. Whether the judgment should be reported
         in the Digest?                                        Yes



A.K. PATHAK, J.

1. Petitioner was appointed as Constable in Delhi Police on

15th June, 1989. He was granted first out of turn ad hoc

promotion as Head Constable on 3rd June, 2003 and was later on

regularized on 22nd May, 2006. He was granted second out of

turn promotion on ad hoc basis on 30th March, 2006 as Assistant

Sub Inspector. These out of turn promotions were given to him

under Rule 19(ii) of Delhi Police (Promotion & Confirmation)

Rules, 1980 (for short hereinafter referred to as "said Rules").

2. Accused Sher Singh Rana, who was involved in the murder

of Smt. Phoolan Devi (Member of Parliament), escaped from Tihar

Jail on 17th February, 2004 and a reward of Rs.50,000/- was

declared on his arrest by the Delhi Police. A team of 8 police

officials was constituted to nab accused Sher Singh Rana.

Petitioner was one of the members of the said team. After

continuous and untiring efforts, police team came to know that

accused had gone to Bangladesh on forged passport. His

presence was also noticed in Kolkata. Accordingly, five police

officials of the team which comprised SI Neeraj Kumar, HC Satish

Kumar, HC Satyavir Singh and Ct. Surender Kumar besides the

Petitioner went to Kolkatta. Petitioner and his teammates made

untiring efforts continuously for more than six months and

nabbed accused Sher Singh Rana on 24th May, 2006 in Kolkatta.

3. DCP (Special Branch) sent the citation for out of turn

promotion to the next higher rank to Petitioner and his four other

teammates on 27th June, 2006. Petitioner along with others was

also granted Asadharan Karya Purskar (AKP) with cash reward of

Rs.5000/- on 15th December, 2006. Recommendation for out of

turn promotion was made by the DCP (Special Branch) as the

Petitioner and his team had not only shown extraordinary

gallantry but had also displayed determination, extraordinary

quality of investigation, dedication, sincerity, meticulous

planning in nabbing accused Sher Singh Rana.

4. One Incentive Committee comprising of Special

Commissioner of Police as Chairman, two Joint Commissioners of

Police and one Dy. Commissioner of Police as Members, was

constituted to consider the cases of out of turn promotion. On

24th April, 2007 Incentive Committee considered the cases of

Members of Kolkatta team and made recommendation for out of

turn promotion to SI Neeraj Kumar, HC Satish Kumar and Ct.

Surender Kumar. However, Incentive Committee decided not to

recommend the case of Petitioner for grant of out of turn

promotion. As per the Respondents, Petitioner was not given out

of turn promotion as he had the benefit of out of turn promotions

twice in the past.

5. Aggrieved by the denial of out of turn promotion to him by

the Incentive Committee, Petitioner filed OA No. 1512/2007

before the Central Administrative Tribunal, Principal Bench (for

short hereinafter referred to as "the Tribunal") praying therein

that the Respondents be directed to consider the valid claim of

the Petitioner for promotion to the rank of Sub-Inspector on out

of turn basis and also to grant all consequential benefits

including seniority, promotion, pay etc. It was alleged that the

Respondents, in not granting out of turn promotion to the

Petitioner, had treated him differently than the other members of

the team who were identically situated vis-a-vis the Petitioner

and this action of the Respondents was discriminatory and in

violation of Article 14 of the Constitution of India.

6. Vide impugned order dated 18th September, 2008 the

Tribunal held that ad hoc out of turn promotion depended upon

the number of vacancies available in a given year and the

number of persons being considered for such promotion. It may

so happen that the number of vacancies in a year are large and

number of recommendations are only few or it may be vice versa.

Depending upon these facts, Incentive Committee can mould the

policy to be followed on the basis of situation prevalent in a

particular year. Depending upon the circumstances, Incentive

Committee can restrict out of turn promotion to those who have

already got upto two such promotions in the past and

discrimination cannot be pleaded as long as all the aspirants, in

a particular year are treated equally as per the common criteria.

Petitioner could be compared with those who were considered for

out of turn promotion in the year in which members of Kolkatta

team were considered. Comparing the Petitioner with other

members of the Kolkatta team it cannot be said that he was

discriminated as they were not granted third out of turn

promotion. Tribunal concluded that the Petitioner was not

discriminated as he was declined third out of turn promotion as

per the policy made by the Incentive Committee in that particular

year.

7. We are of the opinion that the view taken by the Tribunal is

erroneous in the factual and legal context of the present case.

8. Petitioner is a member of Delhi Police. Clause (b) of Section

5 of Delhi Police Act (for short hereinafter referred to as "said

Act") provides that the recruitment to, and the pay, allowances

and all other conditions of service of the members of, the Delhi

Police shall be such as may be prescribed. Sub-section (1) of

Section 147 of the said Act provides that the Administrator may

make rules for carrying out the purposes of the said Act. Sub-

section 2(a) of Section 147 of the said Act shows that the

Administrator has power to make rules regarding recruitment,

pay, allowances and all other conditions of service of the

members of the Delhi Police under Clause (b) of Section 5.

9. The Delhi Police (Promotion & Confirmation) Rules, 1980

(for short hereinafter referred to as "said Rules") have been

framed by the Administrator in exercise of the power conferred

upon him by Sub-section (1) of Section 147 of the said Act. Thus,

promotion and confirmation of the Petitioner and other members

of the Delhi Police is governed by the said Rules. Rule 5 of the

said Rules contains general principles for promotion of the

member of the Delhi Police. However, rule 19 deals with the

ad hoc promotion and the same reads as under:-

"(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

any right for regular appointment or seniority or for appointment to such or any 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 regularized when the persons so promoted have successfully completed the training course prescribed like (Lower School Course), if any. For purposes of seniority such promotes 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 in 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 promotes shall revert to their substantive rank as soon as they are transferred out of training institutions and ceased to be an Instructor."

10. It is, thus, clear that Sub-rule (ii) of Rule 19 governs out-of-

turn promotion to the members of the force, who show

exceptional gallantry and devotion to duty. However, such

promotion can be granted subject to the availability of vacancies

and with further stipulation that such promotion shall not exceed

5 per cent of the vacancies likely to fall vacant in the given year in

the rank. This rule appears to have been framed in order to

encourage the hard-working, dedicated and devoted police

officials. Rule 19 of the said Rules does not put any restriction to

the number of out of turn promotions to a particular

officer/police official. There is no bar that third out of turn

promotion cannot be granted to deserving officer, who had shown

devotion to duty and displayed gallantry.

11. Rule 19 of the said rules has statutory force having been

framed by the Administrator in exercise of the powers vested in

him by virtue of sub-section (1) of Section 147 of the said Act.

Accordingly, no circular, guidelines or office memorandum can

supplant the substantive rules. No policy can be made contrary to

the statutory rules. Accordingly, we are of the view that

Respondent could not have denied third out of turn promotion to

the Petitioner who was similarly placed vis-a-vis his other

teammates named SI Neeraj Kumar, HC Satish Kumar and Ct.

Surender Kumar, being part of the same team which nabbed

accused Sher Singh Rana.

12. We are of the view that the decision of the Respondent

denying out of turn promotion to the Petitioner on the alleged

ground of his having already received two out of turn promotions

while granting out of turn promotion to other team members i.e.

SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar is

arbitrary and is not sustainable.

13. It appears that in the past SI Rajiv Kumar, SI Uma Shankar

and SI Rakesh Kumar were given third out of turn promotions in

the year 2006, 2005 and 1999 respectively. However, Petitioner

has been denied third out of turn promotion on the ground that

he had already received two out of turn promotions in the past. In

spite of the fact that Respondent had granted third out of turn

promotion to some of the members of the force in the past, their

action in denying third out of turn promotion to the Petitioner is

arbitrary and discriminatory and violates Article 14 of the

Constitution of India.

14. In the above factual matrix and the legal position applicable

to this case, we are of the view that the Tribunal has taken

erroneous view in holding that Respondent was justified in

declining third ad hoc promotion to the Petitioner in terms of the

policy decision taken by the Incentive Committee. We,

accordingly, allow the writ petition and set aside the impugned

order passed in OA No. 1512/2007 and direct the Respondents to

accord benefit of out of turn promotion to the Petitioner on the

post of Sub-Inspector on ad hoc basis with effect from the date

when three other members of the Kolkatta team namely, SI Neeraj

Kumar, HC Satish Kumar and Ct. Surender Kumar were granted

ad hoc promotions. Petitioner be also given all consequential

benefits.

The writ petition is allowed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 16, 2009 rb