Delhi High Court
Sh. Vinay Kumar vs The Commissioner Of Police & ... on 21 January, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No.10298/2009
% Date of Decision: 21.01.2010
Sh. Vinay Kumar .... Petitioner
Through Mr.D.S. Chaudhary, Advocate
Versus
The Commissioner of Police & Others .... Respondents
Through Mr.Saleem Ahmed, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The petitioner challenges the order dated 30th April, 2009 passed
in OA No.1170 of 2008 titled Shri Vinay Kumar v. Commissioner of
Police and Others dismissing his petition seeking seniority over
respondents No.2, 3 and 4.
The petitioner had joined Delhi Police as Constable on 25th April,
1981. At the time the petitioner was appointed as Constable, 13
persons had been appointed by common proceedings and the petitioner
was ranked at No.7 and respondents No.2 to 6 were ranked as junior to
him. However, the respondent No.4, Mr. Cyperian Bara, had not been
selected along with the petitioner as he was enlisted on 4th May, 1974
earlier to petitioner and was confirmed on 13th August, 1978.
The petitioner had filed original application being OA No.263 of
2008 titled Vinay Kumar v. Commissioner of Police, Delhi, contending
inter alia that his junior Constable, Cyperian Bara, had been promoted
as Head Constable with effect from 16th October, 2006 whereas he
should have been promoted as Head Constable. The petitioner's date of
birth is 1st November, 1969 and he was enlisted on 25th April, 1989 and
confirmed on 25th October, 1991 whereas Cyperian Bara's date of birth
is 18th October, 1954 and he was enlisted on 4th May, 1974 and he was
confirmed on 13th August, 1978 and was absorbed as Constable Dog
Handler on 11th August, 1989. The said original application was
disposed of by order dated 4th August, 2008 directing the respondent
No.1 to consider the representation filed by the petitioner. Pursuant to
the order of the Tribunal dated 4th February, 2008, the respondent No.1
passed the order dated 11th April, 2008 rejecting the representation of
the petitioner.
Aggrieved by the said order dated 11th August, 2008 of
respondent No.1, the petitioner filed another original application being
OA No.1170 of 2008, which has also been dismissed by order dated 30th
April, 2009 against which the present writ petition has been filed by the
petitioner.
The Tribunal while dismissing the petition has noted that the
respondent No.4 was confirmed on 13th August, 1978 whereas the
petitioner was confirmed on 25th October, 1991. The respondent No.4
had also been enlisted much prior to petitioner on 4th May, 1974
whereas the date of enlistment of the petitioner is 25th April, 1989.
Reliance was also placed on OM dated 3rd July, 1986 of Ministry of
Personnel, Public Grievances and Pension, contemplating that the
seniority of police personnel was being decided on the basis of date of
confirmation which is done once a service in the initial rank is accepted
as per provision in Rule 18 of Delhi Police (Promotion and Confirmation)
Rules, 1980.
The respondent No.1 had categorically stipulated in its order
dated 11th April, 2008 that the confirmation of the petitioner had been
delayed for specific reason as he was found to be lethargic and the
competent authority had directed delay by period of six months on
account of the performance of the petitioner. The order delaying the
confirmation of the petitioner was not challenged by him.
The DPC for promotion to the post of Head Constable had
assessed the suitability of the employees for promotion on the basis of
their service record with particular reference to the confidential reports
for five preceding years irrespective of qualifying service prescribed in
the service/recruitment rules and officers having reports of at least
three 'good' and above without any 'below' or adverse reports even for a
small period during the last five years were empanelled. The
respondent No.1 had also relied on OM No.20011/5/90-Estt.(D),
Government of India, Department of Personnel and Training, dated 4th
November, 1992 contemplating that the seniority of a person regularly
appointed to a post will be determined by the order of merit indicated at
the initial appointment and not according to the date of confirmation.
Learned counsel for the petitioner has very emphatically relied on
(1992) 2 SCC 715, Direct Recruit Class II Engineer Officers Association
v. State of Maharashtra and others deciding about the inter se seniority
between the direct recruits and promotees. It was held that where
initial appointment is not made by following procedure laid down by the
rules but appointee continues in the post uninterruptedly till
regularization of his service in accordance with the rules, the period of
officiating service will be also counted. It was further held that where
initial appointment is only ad hoc, made as a stop-gap arrangement and
not according to the rules, the officiation in such post cannot be taken
into account for considering the seniority. Apparently, the ratio of the
decision relied by the learned counsel for the petitioner is not applicable
in the facts and circumstances of the present case. The respondent
No.4, Cyperian Bara, was not only confirmed before the petitioner but
he was also enlisted as Constable much prior to petitioner on 4th May,
1974 whereas the petitioner was enlisted as Dog Handler on 25th April,
1989. In the circumstances, the petitioner cannot claim seniority over
Cyperian Bara and for similar reasons he cannot claim seniority over
other respondents.
In the circumstances, learned counsel for the petitioner is unable
to point out any such illegality or irregularity in the order of the
Tribunal dated 30th April, 2009 which would require interference by this
court. The writ petition, in the facts and circumstances, is, therefore,
without any merit and it is dismissed.
ANIL KUMAR, J.
January 21, 2010 MOOL CHAND GARG, J.
'Dev'
