Delhi High Court

Surinder Kumar Sand vs Union Of India & Ors. on 11 January, 2010

Author: Mool Chand Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     WP(C)7934/2009

                                           Date of decision: 11.01.2010

      SURINDER KUMAR SAND                             ...PETITIONER
                   Through:          Mr. P.P. Khurana, Sr. Adv. with Ms.
                                     Seema Pandey, Advocate

                                 Versus

      UNION OF INDIA & ORS.                           ...RESPONDENTS
                     Through:        Ms. Jasmine Ahmed, adv. for
                                     respondent No.1.
                                     Ms. Avnish Ahlawat, Adv. for
                                     respondents No. 2 to 4.
      CORAM:
      HON'BLE MR. JUSTICE ANIL KUMAR
      HON'BLE MR. JUSTICE MOOL CHAND GARG


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

2.    To be referred to Reporter or not?                No

3.    Whether the judgment should be                    No
      reported in the Digest?


:     MOOL CHAND GARG, J.

1. The short point involved in this petition is as to whether the

petitioner, who arrested 75 proclaimed offenders during the period of one

year i.e. from 11.05.1992 to 10.05.1993 and was recommended for out of

turn promotion in accordance with Rule 19 of Delhi Police (Promotion

and Confirmation) Rules, 1980 (hereinafter referred to as „the said Rules‟)

ought to have been promoted w.e.f. 11.5.1993 irrespective of the holding

of Departmental Promotion Committee (DPC) by the respondents.

2. Briefly stating the facts of this case are; that the petitioner who

was working as a Sub-Inspector with Delhi Police and arrested 75

proclaimed offenders in one year during the period commencing from

11.05.1992 to 10.05.1993 and was recommended for out of turn

promotion but was promoted to the post of Inspector w.e.f. 05.08.1994

after a DPC was held and was regularly promoted w.e.f. 18.08.1994. It

may be observed here that letter recommending the promotion of the

petitioner to the post of Inspector has not been placed on record.

3. It is the case of the petitioner that he ought to have been promoted

to the next post of Inspector w.e.f. 11.05.1993 in view of the scheme

framed by the respondents as given on page 53 of the paper book as

Annexure P-5, Annexed to the rejoinder which reads as under:

"Copy of Circluar No.10/CB-VI/PHQ from DCP/Hdqrs.(I), Delhi to DCP/North District, Delhi etc.

Subject: Reward for arresting proclaimed offenders.

It has been noticed that a number of subordinate officers have taken keen interest in arresting Proclaimed 200 Offenders which act is indeed commendable.

In order to recognize their hard work and commitment to duty these officers have been given, from time to time, varying a rewards, including out of turn promotion. In order to have a uniform policy for recognizing the services of such officers categories of rewards:-

I. OUT OF TURN PROMOTION Out of turn promotion will be given to an officer who apprehends;

             i)     More than 75 POs in one year, or
             ii)    More than 125 POs. in two years, or
             iii)   More than 250 POs. in 5 years.

4. The petitioner submits that in view of the aforesaid policy once he

was recommended for promotion, the respondents ought to have

considered his out of turn promotion w.e.f. 11.05.1993 and not with

effect from the date on which he was actually promoted by the DPC i.e.

on 05.08.1994. He also relies upon the judgment delivered by this Court

in the case of S.I. Naresh Kumar Vs. Govt. of NCT of Delhi & Anr., who was

also similarly considered to have been promoted with effect from the date

of his recommendation for out of turn promotion and whose case came

up before this Court in W.P.(C.) No. 11732/2005 decided on 06.03.2007.

5. It is submitted that the case of the petitioner was considered by

the Tribunal vide order dated 22.07.2008 when it was held that the

petitioner was entitled for being considered to be promoted on out of turn

basis from the date he was recommended but the matter was left for the

respondents to decide. The relevant observations made in the judgment

is reproduced herein:

Judgment of the Delhi High Court would clearly manifest that the controversy as raked up in the present Applications was not an issue before the High Court at all. The only debate was with regard to the applicability of circulars clarified later. The petitioner was held entitled to the relief as per the original circular and clarifications were not to apply retrospectively. It is too well settled that no decision can be cited as a precedent unless on the concerned issue there is a debate, and in consideration thereof law that may be laid down. No directions sans issuance of such directions being a matter of debate can be cited as a ratio deci dendi. It may thus, therefore, be true that even though Naresh Kumar was granted relief of out of turn promotion from the date of recommendation of his case, but the same, in our considered view, cannot be cited as a binding precedent.

6. The respondents contested the aforesaid stand of the petitioner by

filing the counter affidavit have submitted, that even though the

petitioner was held entitled for the out of turn promotion in accordance

with the Rule 19(ii) of the said Rules but that this recommendation does

not mean that the petitioner ought to have been treated as having

promoted from the date of the recommendation inasmuch as the

aforesaid rule does not ipso facto talk of promotion but requires the

promotion to be considered by a Departmental Promotion Committee

(DPC). The said Rule, for the sake of reference, is reproduced hereunder:

"(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."

7. It was submitted by the respondents that in accordance with the

aforesaid rules after the recommendation was made in favour of the

petitioner, the matter was placed before the Departmental Promotion

Committee, it was considered by the Committee consisting of the

Commissioner of Police as Chairman and Additional CP/Admn. New

Delhi Range and DCP/Headquarters (I) as members. The said

Committee also considered his case along with other 156 cases received

in Police Headquarters from the Month of December, 1992 to July 1994,

in its meeting held on 05.08.1994. After consideration, the Committee

recommended, 34 subordinate officers including the petitioner for the

grant of Out of Turn Promotion in the next higher rank, 55 were

recommended for the grant of Ashadharan Karya Puraskar, 46 were

recommended for the grant of Commendation Roll, 09 were

recommended for President Police Medal for Gallantry and the remaining

were recommended for the grant of suitable reward by the concerned

CDsP. Accordingly, the petitioner and other 33 subordinates officers

were granted adhoc promotion to the next-higher rank w.e.f. 05.08.1994

on the basis of Out of Turn promotion under Rule 19(ii) of the said Rules

vide PHQ‟s Notification No.26573-660/CB-VI, dated 05.08.1994.

8. In the said notification it was clearly mentioned that they will have

no claim for seniority etc. and liable for reversion at any time without

assigning any reason. Their adhoc promotion will be dependent on their

continued good work and conduct during the period of such promotion.

9. Subsequently the name of the petitioner was admitted to

promotion list F (Exe.) w.e.f. 12.08.1994 in terms of Rule 17(i) of the said

Rules vide Police Headquarters notification No.27543-643/CB-I/PHQ

dated 12.08.1994. Since, the petitioner had already been promoted on

adhoc basis to the rank of Inspector(Exe.) under Rule 19(ii) of the said

Rules, his seniority was required to be fixed at the bottom of the List

F(Exe.) drawn on 12.08.1994. But keeping in view all fairness and to

avoid loss of seniority to the applicant, his due seniority was not ignored

in List F(Exe.) and his name was placed at Sl. No.148 in the aforesaid

notification dated 12.08.1994, his adhoc promotion in the rank of

Inspector (Exe.) was regularized w.e.f. 18.08.1994 vide PHQ‟s notification

No.29109/CB-I/PHQ dated 22.08.1994.

10. It is also submitted that despite passing of the aforesaid order and

issuance of Notification bearing Sl. No.148 dated 12.08.1994, the

petitioner submitted a representation only in 2006 for consideration

made for promotion to Grade-II of DANIPS against vacancies for the year

1999-2000 and enclosed copy of his earlier representation dated

10.01.2002 requesting him to grant out of turn promotion to the rank of

Inspector w.e.f. 11.05.1993 instead of 05.08.1994. As the representation

dated 10.01.2002 was not available on record, the copy of the same was

received in Police Headquarters only during the month of July, 2006 and

it was found that the petitioner was granted adhoc promotion in the rank

of Inspector (Exe.) on out of turn basis w.e.f. 05.08.1994 i.e. the date on

which his case was approved by the Commissioner of Police, Delhi and

accordingly the representation made by the petitioner was rejected. It

was thereafter, he filed the Original Application which, as stated above,

has not been decided in his favour.

11. Insofar as the case of the Naresh Kumar (Supra) is concerned to

which reference has been made by the petitioner, the Tribunal has

considered the decision in that case, which was decided only for the

purpose of deciding the number of arrests made by the said Naresh

Kumar. The relevant portion of the discussion had in this case in this

regard are reproduced hereunder:

8. Insofar as, the second contention of the learned counsel that the applicant in his out of turn promotion should be assigned seniority of the year 1993, as it is in that year that his case was recommended and that he had fulfilled the criteria and become eligible for out of turn promotion for making requisite arrests of proclaimed offenders in a year preceding the date of recommendation, is concerned, support is sought to be drawn only from the decision of the Hon ble Delhi High Court in Naresh Kumar (supra). The facts of the case reveal that pursuant to circular dated 29.11.1992, citation was issued in favour of the petitioner on 7.3.2001 recommending his name for out of turn promotion. He was, however, not granted out of turn promotion though he was granted commendation on 26.2.2002, in addition to a sum of Rs.5000/- as cash reward. The only ground on which the petitioner was denied out of turn promotion was that due to the stand taken by the respondents that benefit of circular dated 29.11.1992 could not be granted to him as in a later circular dated 21.5.2001, the method and manner of calculating arrests of proclaimed offenders was that the arrests occasioned by production warrants were not to be reckoned for arriving at the figure of 75 arrests entitling the petitioner to out of turn promotion. This was based on the respondents splitting up the petitioner s arrests of

proclaimed offenders into 59 physical arrests and 16 arrests through production warrants issued by courts. Naresh Kumar challenged denial of out of turn promotion to him before this Tribunal by placing reliance on circular dated 29.11.1992. The Tribunal while denying him the benefit of circular dated 29.11.1992, observed as follows:

"So far the plea of the respondents that these Circulars will have retrospective effect is concerned, we have no hesitation in rejecting the said contention. This is for the reason that on 7.3.2001, the Officer/In- charge, Police Station, Kotwali had recommended the claim of the applicant for out of turn promotion. The Circulars have been issued thereafter. Once the vested right had accrued to the applicant, if any, it could not have been withdrawn or taken away by a subsequent Circular. Therefore, the principle that a clarificatory circular necessarily will have a retrospective effect, has no application in the facts of the present case."

The order of this Tribunal which was challenged in the High Court was set aside, by observing as follows:

"12. We are unable to agree with the conclusion of the Tribunal which denies the petitioner the benefit of the Circular of 29.11.1992 for the following reasons:

(a) Having arrived at a finding that the latter circular of 13th May, 2001 was not retrospective, the rationale of the said Circular could not be applied to the case of the petitioner particularly when the respondents had not challenged in this court the findings of the prospective operation of the Circular of 21st May, 2001.

(b) The respondents having applied the principle of adding the arrests of production warrants in the case of Surender Kumar Sand, could not deny it to the petitioner as such denial would violate Article 14 and 16.

(c) The recommendation for out of turn promotion was made on 7th March, 2001 and his claim being justified could not be covered under a circular issued on 21st May, 2001.

(d) In any case the rationale to deny the benefits of the arrests of the proclaimed offenders merely because it was on the basis of a production warrant does not appear to be wholly logical."

The High Court further held that Naresh Kumar should be granted the same treatment as was granted to Surender Kumar Sand (applicant herein) and be given the benefit of circular dated 29.11.1992 so as to count even the arrests made through production warrants towards his out of turn promotion. The operative part of the order granting

relief to Naresh Kumar reads, thus:

"14. Accordingly, the writ petition is allowed and the Respondents are directed to give the benefit of Circular dated 29th November, 1992 to the Petitioner on or before 7th May, 2007 with consequential benefits not later than 30th April, 2007.

                     15.     We     clarify  that   consequential
                     benefits when given shall not involve any
                     emoluments for the past period.           The

financial benefits will be from the date of this judgement. However, all promotions and seniority will be from 1st April, 2001 as the Petitioner was recommended departmentally for this benefit on 7th March, 2001 as per the existing circular dated 29th November, 1992 (emphasis supplied)."

12. Learned counsel for the petitioner has submitted that the O.A. was

within limitation inasmuch as the O.A. was filed by the petitioner on

10.01.2002 when he came to know of the seniority list circulated by the

respondents on 29.11.2001. However, as stated by the respondents, the

representation dated 10.01.2002 is not available on record. The second

representation filed by the petitioner was dated 21.07.2006 which was

apparently for pre-dating of his promotion for the purpose of getting

further benefits. It is obvious that the petitioner who got benefit of the

out of turn promotion w.e.f. 05.08.1994 cannot be said to have no

knowledge of his out of turn promotion even though not only that he was

promoted out of turn on 05.08.1994 but was also promoted regularly

w.e.f. 18.08.1994.