Govt. Of Nct Of Delhi & Ors. vs Satyabir Singh
2011 Latest Caselaw 241 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 8952/2009

%                      Date of Decision: 17.01.2011

GOVT. OF NCT OF DELHI & ORS.                 .... Petitioner
                Through Ms.Zubeda Begum with Ms.Sana Ansari,
                         Advocates

                               Versus

SATYABIR SINGH                                   .... Respondents
                    Through Mr.Sourabh Ahuja, Advocate



CORAM:
HON‟BLE MR. JUSTICE ANIL KUMAR
HON‟BLE MS. JUSTICE VEENA BIRBAL

1.   Whether reporters of Local papers may be
     allowed to see the judgment? No
2.   To be referred to the reporter or not? Yes
3.   Whether the judgment should be reported in
     the Digest? Yes


VEENA BIRBAL, J.

*

1. Present is a petition under Article 226 of the Constitution of

India wherein a challenge is made to the order dated 18th September,

2008 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi (hereinafter referred to as „the Tribunal‟) in OA 1513/2007

whereby direction has been given to petitioners to give benefit of out

of turn promotion to the respondent retrospectively.

2. Necessary facts relevant for the disposal of the petition are as

under:-

Respondent-Satyavir Singh was appointed as a Constable

(Executive) in Delhi Police on 16.11.1987. He was granted ad hoc

promotion in the rank of Head Constable (Executive) w.e.f 24.3.2005

on out of turn basis under Rule 19 (ii) of Delhi Police (Promotion &

Confirmation) Rules, 1980 (hereinafter referred to as „the Rules‟). On

8.8.2006 a citation for the grant of out of turn promotion to the next

higher rank was received in the office of respondent no.4 from DCP

Special Cell (SB), Delhi, in respect of eight police officials including

the respondent, all members of the team which apprehended Sher

Singh Rana, the killer of Phoolan Devi, the then Member of

Parliament, for displaying their dedication, sincerity by meticulous

planning, developing every minute information so obtained etc.

Accordingly, the aforesaid citation was referred before the "Incentive

Committee" constituted by the Commissioner of Police, Delhi,

comprising of a Special Commissioner of Police as its Chairman, two

Joint Commissioners of Police and one Deputy Commissioner as its

members. The matter was considered by the Incentive Committee

as per criteria fixed by it and recommended respondent and others

for the award of „Asadharan Karya Puraskar‟ on 15.12.2006. The

recommendations were approved by the Commissioner of Police,

Delhi. Accordingly, respondent and seven other police officers were

awarded the aforesaid award with cash reward of Rs.5000/-.

On 15.1.2007, DCP (Special Cell) (SB), forwarded the

representations submitted by respondent and seven other police

officers/men requesting therein for the grant of Out of Turn Promotion

to their next higher rank instead of „Asadharan Karya Puraskar‟. The

Commissioner of Police, Delhi ordered for placing the same before the

"Incentive Committee". On 24.4.2007, the "Incentive Committee"

considered their respective cases and also heard them in person

wherein they represented that the entire team was responsible for

nabbing the most notorious and elusive criminal, namely, Sher Singh

Rana who was carrying a reward of Rs.50,000/- on his head declared

by Delhi Police and was arrested after making serious efforts for six

months. The Incentive Committee did not recommend the names of

ASI Devender Kumar and the present respondent for out-of-turn

promotion on the ground that both of them had been given out-of-

turn promotions on 30.03.2006 and 24.03.2005 respectively, as such,

they were not falling under the criteria fixed by it for out-of-turn

promotion in its meeting held on 4.12.2006. Accordingly, they were

not recommended for out of turn promotion. It was observed that

„Asadharan Karya Puraskar‟ with cash reward of Rs.5000/- was

adequate for them. The Incentive Committee recommended for the

grant of Out of Turn Promotion to SI (Exe) Neeraj Kumar, Head

Constable (Exe) Satish Kumar and Constable Surender Kumar. The

Incentive Committee also examined the individual role of remaining

three police officials of the team and did not recommend their names

for out of turn promotion. The recommendations made by the

Incentive Committee were approved by the Commissioner of Police,

Delhi and accordingly, respondent was informed vide

Hdqrs.U.O.No.24495/ CB/IV/PHQ on 8.5.2007.

3. Aggrieved with the aforesaid order, respondent filed OA

No.1513/2007 before the Tribunal. ASI Devender Kumar had also

challenged the said order by filing separate O.A. i.e. OA

No.1512/2007.

4. Both the O.As were disposed of vide common judgment dated

18th September, 2008 by the Tribunal by which it did not grant any

relief to ASI Devender Kunar whereas the present respondent was

granted out-of-turn promotion retrospectively.

5. The petitioners challenged the impugned order dated

18.09.2008 by filing the present petition in so far as it allows the O.A.

No.1512/2007 filed by the respondent.

6. Counsel for the petitioners has contended that the Tribunal has

committed illegality in granting out of turn promotion to the

respondent. It is contended that Rule 19 (ii) of the Rules provides for

ad hoc promotion to suitable officers for exceptional gallantry and

devotion to duty, provided vacancies exist and also to the extent of

five per cent of the vacancies during the given year. It is contended

that when the matter was considered by the Incentive Committee for

the grant of Out of Turn Promotion, keeping in view the ceiling limit,

the case of respondent was not considered as no vacancy was then

existing.

7. On the other hand, the contention of the respondent is that the

impugned order passed by the Tribunal is legal and justified. It is

contended that out of turn promotion has been granted to the other

three members of the team namely SI Neeraj Kumar, HC Satish

Kumar and Constable Surender Kumar and now by the judgment of

Division Bench of this court passed in WP(C) 8841/2008, ASI

Devender Kumar has also been accorded out of turn promotion and

as such, petitioner cannot be discriminated by denying the same to

the respondent.

8. It is admitted position that respondent was a member of the

team which had nabbed accused Sher Singh Rana, killer of Phoolan

Devi, the then Member of Parliament. The members of the entire

team were recommended for out of turn promotion to the next higher

rank by the DCP/Special Cell (SB). It is also admitted position that the

Incentive Committee vide recommendations dated 24.4.2007

recommended out-of-turn promotion to SI Neeraj Kumar, HC Satish

Kumar and Constable Surender Kumar who were earlier granted one

out-of-turn promotion each. The Incentive Committee did not

recommend Out of Turn Promotion to ASI Devender Kumar and Head

Constable Satyabir Singh, i.e respondent in the present case, on the

ground that both of them were recently promoted on Out of Turn

basis on 30.3.2006 and 24.3.2005 respectively, as such were not

falling in the criteria fixed by it for the said purpose in the meeting

held on 04.12.2006.

Learned counsel for respondent has pointed out that ASI

Devender Kumar had also challenged the order of the Tribunal before

this Court by filing W.P(C) 8841/2008 titled ASI Devender Kumar Vs.

Govt. of NCT of Delhi & Ors. The aforesaid writ petition was allowed

by the Division Bench of this Court vide judgment dated 16.07.2009

wherein out-of-turn promotion to the next rank has been granted to

ASI Devender Kumar. It is also informed that the said judgment has

not been challenged by the petitioners before the Apex court.

9. The relevant Rule which deals with out of turn promotion to the

members of the Police force, who show exceptional gallantry and

devotion to duty is Rule 19(ii) of the Rules. The same is reproduced

as under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(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.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"

In ASI Devender Kumar Vs. Govt. of NCT of Delhi & ors (supra) it

is held that the Rule 19(ii) of the Rules does not put any restriction to

number of Out of Turn Promotions to a police official who show

exceptional gallantry and devotion to duty. However, such promotion

can be granted subject to the availability of vacancies and with the

further stipulation that such promotion shall not exceed 5% of the

vacancies likely to fall vacant in the given year in the rank.

As regards contention of petitioner that there was no vacancy in

the rank of ASI when the matter was considered by the Incentive

Committee, the Tribunal has observed as under:-

"The minutes of the meeting of the Incentive Committee were also produced for our perusal by the respondents. The minutes have not stated that the five per cent limit for out-of-turn promotions would be exceeded if the applicants were also to be recommended for out-of-turn promotion. A view, however, had been taken that those who had already been granted two promotions on out-of-turn basis, would not be considered for the third promotion. The other three members of the Kolkatta team, namely, SI, Neeraj Kumar, HC, Satish Kumar and Constable Surender Kumar had only got one out-of-turn promotion each and therefore, were recommended for the second such promotion. ASI, Devender Kumar was excluded because he had had two promotions already on out-or-turn basis. However, HC, Satyavir Singh (the applicant in OA 1513/2007) was excluded although he had only one promotion on out-of-

turn basis." (emphasis supplied)

The Tribunal has categorically observed that the minutes

nowhere states that the ceiling limit of 5% out-of-turn promotion

would have exceeded in case the said promotion was given to

respondent. The aforesaid observation is made after perusing the

minutes of the meeting of the Incentive Committee. The Incentive

Committee did not recommend the respondent for the grant of out-

of-turn promotion on the ground that he had already got one out-of-

turn promotion on 24.3.2005, as such, was not falling as per the

criteria fixed by it and not for the reasons as is being contended now.

The Tribunal noting that the other members of the team, namely SI

Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar were also

granted earlier one out-of-turn promotion each despite that they

were recommended for second such promotion, has held that the

petitioners have discriminated the respondent by denying promotion

to him. The finding of the Tribunal is legal and justified.

In view of above discussion, the contention of learned counsel

for the petitioners that prescribed ceiling limit of 5 per cent would

have exceeded in case respondent was recommended for out of turn

promotion, has no force. It may also be noticed that no such stand

was taken by the petitioners in the counter affidavit filed by it before

the Tribunal nor any such stand is taken in the present petition

challenging the impugned order of the Tribunal.

Counsel for the petitioner has placed reliance on Jatinder Kumar

& ors Vs. State of Punjab & ors reported in AIR 1984 SC 1850. We

have gone through the said judgment. The same is not applicable to

the facts of the present case.

Considering the totality of the facts and circumstances, we find

no illegality or irrationality in the order of the Tribunal which calls for

no interference by this court in exercise of its jurisdiction under

Article 226 of the Constitution of India. The writ petition is dismissed

with no order as to costs.

VEENA BIRBAL, J.

ANIL KUMAR, J.

th JANUARY 17 , 2011 ssb