Delhi High Court
Umesh Barthwal vs Gnct Of Delhi And Ors on 6 March, 2013
Author: Pradeep Nandrajog
$~4 to 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: March 06, 2013
+ W.P.(C) 5203/2012
UMESH BARTHWAL ..... Petitioner
Represented by: Mr.J.P.Sengh, Sr.Advocate with
Mr.Sourabh Ahuja and Ms.Ankita
Gupta, Advocates
versus
GNCT OF DELHI AND ORS ..... Respondents
Represented by: Mr.Anuj Tyagi, Advocate with
Mr.Sachin Chopra and
Mr.Anjum Javed, Advocates
W.P.(C) 5206/2012
RAKESH KOTHIYAL ..... Petitioner
Represented by: Mr.J.P.Sengh, Sr.Advocate with
Mr.Sourabh Ahuja and Ms.Ankita
Gupta, Advocates
versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Represented by: Mr.Anuj Tyagi, Advocate with
Mr.Sachin Chopra, Advocate
W.P.(C) 5207/2012
SANJEEV SHOKEEN ..... Petitioner
Represented by: Mr.J.P.Sengh, Sr.Advocate with
Mr.Sourabh Ahuja and Ms.Ankita
Gupta, Advocates
versus
GNCT OF DELHI AND ORS ..... Respondents
W.P.(C) No.5203/2012 & conn.matters Page 1 of 12
Represented by: Mr.Anuj Tyagi, Advocate with
Mr.Sachin Chopra, Advocate
W.P.(C) 5208/2012
MANOJ KUMAR ..... Petitioner
Represented by: Mr.J.P.Sengh, Sr.Advocate with
Mr.Sourabh Ahuja and Ms.Ankita
Gupta, Advocates
versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Represented by: Mr.Anjum Javed, Advocate
W.P.(C) 5210/2012
MANOJ KUMAR ..... Petitioner
Represented by: Mr.J.P.Sengh, Sr.Advocate with
Mr.Sourabh Ahuja and Ms.Ankita
Gupta, Advocates
versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Represented by: Mr.Anjum Javed, Advocate
W.P.(C) 5211/2012
RAJ KUMAR ..... Petitioner
Represented by: Mr.J.P.Sengh, Sr.Advocate with
Mr.Sourabh Ahuja and Ms.Ankita
Gupta, Advocates
versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Represented by: Mr.Anjum Javed, Advocate
W.P.(C) 5212/2012
KULDEEP SINGH ..... Petitioner
W.P.(C) No.5203/2012 & conn.matters Page 2 of 12
Represented by: Mr.J.P.Sengh, Sr.Advocate with
Mr.Sourabh Ahuja and Ms.Ankita
Gupta, Advocates
versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Represented by: Mr.Anuj Tyagi, Advocate with `
Mr.Sachin Chopra, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. This is a second round of litigation being fought. The first
round was fought when all the writ petitioners had individually litigated
after filing original applications before the Central Administrative Tribunal.
They were claiming entitlement to be granted out of turn promotion which
was permitted as per Rule 19 of the Delhi Police (Promotion and
Confirmation) Rules 1980. The Rule in question required 5% vacancies to
be reserved for outstanding sportsmen, marksmen and such officers of Delhi
Police who displayed exceptional gallantry or devotion to duty. The Rule
envisages the Commissioner of Police to determine the eligible officers and
grant them out of turn promotion but with the approval of the Lt.Governor
of Delhi.
2. On September 21, 1999 the Commissioner of Police had issued
an order constituting a committee to examine cases for out of turn
promotion.
3. Taking note of citations, gallantry awards etc. received by the
petitioners, the Committee proposed grant of out of turn promotion to the
petitioners which was approved by the Commissioner of Police. A few
other officers were likewise recommended to be granted out of turn
promotion which recommendation was approved by the Commissioner of
Police. Promotions were effected but not qua the petitioners and one HC
Yashpal and HC Surender. Representations made by the petitioners were
ignored. They filed original applications before the Tribunal in the year
2009 which were disposed of by the Tribunal with a direction that a
reasoned decision would be taken on the representations made. The
Committee constituted by the Commissioner of Police re-considered the
matter and opined that the petitioners were not entitled to any out of turn
promotion, a view which was challenged by the petitioners once again by
filing original applications. The debate before the Tribunal was on two
points. Firstly whether the reconsidered opinion to deny out of turn
promotion could be sustained, and secondly whether the stand taken by
Delhi Police that out of turn promotions could be granted only with respect
to 5% vacancies in the year when the act of gallantry/bravery or achieving
distinction in sports or a marksman was achieved was correct. And for the
latter controversy we may simply note that a justification given in the
alternative was that there were no vacancies which had accrued in the year
in question and thus the question of reserving 5% thereof for out of turn
promotion did not arise.
4. The Tribunal held in favour of the petitioners. The respondents
came up to this Court filing 7 writ petitions numbered as W.P.(C)
No.5444/2010, W.P.(C) No.5446/2010, W.P.(C) No.5458/2010, W.P.(C)
No.5465/2010, W.P.(C) No.5482/2010, W.P.(C) No.5528/2010 and W.P.(C)
No.5549/2010.
5. On the subject of the incentive committee, while re-considering
the matter, opining that the citations and gallantry awards received by the
respondents did not entitle them to having performed acts of bravery,
deciding all 7 writ petitions vide judgment dated December 10, 2010 the
Division Bench of this Court opined the view to be ex-facie perverse. The
language of the citations were noted by the Division Bench which clearly
evidences the acts of bravery and exceptional devotion to duty performed by
the respondents. The Division Bench highlighted that the first opinion of the
Committee had extensively dealt with the roles performed by the
respondents while discharging their duties evidencing act of gallantry. On
the subject of Rule 19 of the Delhi Police (Promotion and Confirmation)
Rules 1980 wherein 5% vacancies were required to be filled up by out of
turn promotions, the Division Bench noted the following words in the Rule:
'such promotions shall not exceed 5% of the vacancies likely to fall vacant
in the given year in the rank.' In paragraphs 33 and 34 of its opinion, the
Division Bench opined as under:-
"33. The expression „given year‟ is found in the
sentence „Such promotions shall not exceed 5% of the
vacancies likely to fall vacant in the given year in the
rank'. It is apparent that the sentence contemplates
promotions to be given in a rank and further imposes a
limit by prescribing that promotions shall not exceed 5%
of the vacancies. The only area of debate is to the year for
which the limit of 5% vacancies capable of being filled up
under Rule 19(ii) i.e. which is the year contemplated by the
Rule. The expression, likely to fall vacant, guides us that it
is the future which is to be the guiding factor for the reason
when one talks of an event „likely' to happen it has to be in
the future and cannot be in the present or the past. Thus, at
least one thing is clear that the year for which 5%
vacancies have to be identified has to be the year after
when the act of bravery or gallantry was performed. It
could be the year next; or is it any other year other than the
year next. It has to be factored that the process of
identifying the eligible persons is a time consuming
process inasmuch as an Incentive Committee has to screen
large number of cases and make recommendations which
have to be perused by the Commissioner of Police and sent
for approval to the administrator, who in turn has to apply
his mind and then a final decision taken. It is settled law
that while interpreting a statute, if the language permits,
the practicality of the situation to which the Rule has to be
applied has to be kept in mind. It is settled law that a
statute has to be interpreted to further the object. The
object of Rule 19(ii) is to reward gallantry and bravery and
indeed it acts as an incentive to a police officer, in
discharge of his duties, that if he puts in more than what is
normally required in the discharge of his duties and even at
the cost of personal safety, he would be rewarded. Thus,
the Rule has to be interpreted, as long as the language
permits, to preserve and implement the beneficial right
which accrues to a police officer and not in a manner
where the right is recognized but is left unenforced due to
technicalities. Keeping in view the pre-noted principles
the expression „Such promotions shall not exceed 5% of
the vacancies likely to fall vacant in the given year in the
rank' is capable of being read as limiting 5% quota to the
vacancies which fall vacant in any given year i.e. the right,
on being crystallized, for its implementation has to await
existence of 5% vacancies allocable for the quota in each
year, meaning thereby the department has to satisfy the
claim as and when it can be accommodated within the 5%
vacancies accruing in the given year i.e. the year in which
the promotion is made. We find that the department has
itself been interpreting and implementing the Rule as is
expounded by us. The same is evidenced with respect to a
response to a query sought from the petitioner under Right
to Information Act by the respondent. Information sought
was to inform the date when the Incentive Committee gave
the recommendation, the date on which the Commissioner
granted approval and the date of promotion. The response
submitted in a tabular form reads as under:-
"DETAIL OF POLICE OFFICIALS WHO WERE
GRANTED OUT OF TURN PROMOTION DURING
THE YEAR - 2006
SL. No. Rank Name & No. Date of ICM Date of Date of
approval by Promotion
CP
1. SI (Exe.) Akhileshwar, 27/01/2004 29/01/2004 02.01.2006
D/884
2. SI (Exe.) Arvind Kr., 12, 15 & 27/04/2002 02.01.2006
D/2750 16/04/2002
3. SI (Exe.) Arvind Kr., 13/10/2004 21/10/2004 02.01.2006
D/842
4. SI (Exe.) Ranbir Singh, 15/09/2004 16/09/2004 02.01.2006
D/3443
5. SI (Exe.) Sanjay Dutt, 13/02/2001 13/02/2001 02.01.2006
D/2736
6. SI (Exe.) Jitender 25/10/2005 25/10/2005 30.03.2006
Singh, D/3782
7. SI (Exe.) Rajpal Dabas, 14/12/2005 14/12/2005 19.06.2006
D/882
8. SI (Exe.) Ved Prakash, 14/12/2005 14/12/2005 19.06.2006
D/3451
9. SI (Exe.) Raj Kr, 14/12/2005 14/12/2005 20.10.2006
D/3467
10. ASI (Exe.) Devender, 29/06/2005 29/06/2005 30.03.3006
11. ASI (Exe.) Harish 24/06/2005 24/06/2005 30.03.2006
Chander,
372/D
12. ASI (Exe.) Rajiv Kakker, 25/10/2005 25/10/2005 30.03.2006
13. ASI (Exe.) Rishi Pal, 29/06/2005 29/06/2005 30.03.2006
647/88,
1188/D
14. ASI (Exe.) Kamal Singh, 31.07.2006 31.07.2006
1582/D
15. ASI (Exe.) Devender 02/08/2006 03/08/2006 31.08.2006
Singh, 548/88
16. ASI (Exe.) Krishan Lal, 02/08/2006 03/08/2006 31.08.2006
1223/D
17. ASI (Exe.) Parmod Kr., 02/08/2006 03/08/2006 31.08.2006
18. ASI (Exe.) Rajinder Singh, 02/08/2006 03/08/2006 31.08.2006
19. ASI (Exe.) Ranvir Singh, 02/08/2006 03/08/2006 31.08.2006
20. HC (Exe.) Ashok Kr., 07/06/2005 07/06/2005 30.03.2006
1207/8D
21. HC (Exe.) Chiranji Lal, 04/06/2005 04/06/2005 30.03.2006
36/DRP
22. HC (Exe.) Devender Kr., 22/12/2004 22/12/2004 30.03.2006
235/NE,
247/SB
23. HC (Exe.) Devender 10/02/2005 30.03.2006
Singh, 91/Cr.
24. HC (Exe.) Hira Lal, 15/03/2005 15/03/2005 30.03.2006
139/SB
25. HC (Exe.) Kewal 17/06/2005 30.03.2006
Krishan,
49/Cr.
26. HC (Exe.) Rajinder 13/10/2004 13/10/2004 30.03.2006
Singh, 471/SB
27. Ct. (Exe.) Gulveer Sigh, 12/04/2006 12/04/2006 28.04.2006
4437/DP
28. Ct. (Exe.) Pankaj 12/04/2006 12/04/2006 28.04.2006
Sharma,
9782/DAP
29. Ct. (Exe.) Bijender Kr., 12/04/2006 12/04/2006 17.05.2006
921/C
30. Ct. (Exe.) Khalid Ahmad, 12/04/2006 12/04/2006 17.05.2006
3103/SD
31. Ct. (Exe.) Surender Kr., 12/05/2006 12/05/2006 17.05.2006
1397/SD
32. Ct. (Exe.) Bachu Singh, 02/08/2006 03/08/2006 31.08.2006
270/DRP
33. Ct. (Exe.) Devender Kr., 02/08/2006 03/08/2006 31.08.2006
489/SB
34. Ct. (Exe.) Mohd. Iqbal, 02/08/2006 03/08/2006 31.08.2006
7341/DAP
35. Ct. (Exe.) N.K. Pavithran, 02/08/2006 03/08/2006 31.08.2006
467/DRP
36. Ct. (Exe.) Ombir Singh, 02/08/2006 03/08/2006 31.08.2006
1702/W
37. Ct. (Exe.) Vinod Kr., 02/08/2006 03/08/2006 31.08.2006
4614/DAP
38. Ct. (Exe.) Babulal Meena, 30/11/2006 30.11.2006
2340/E
39. Ct. (Exe.) Suresh Chand, 30/11/2006 30.11.2006
1829/E
40. Ct. (Exe.) Anil Kumar, 04/12/2006 05/12/2006 15.12.2006
1277/NW
41. Ct. (Exe.) Azad Singh, 04/12/2006 05/12/2006 15.12.2006
322/DRP
42. Ct. (Exe.) Bhoop Singh, 04/12/2006 05/12/2006 15.12.2006
2242/SD
43. Ct. (Exe.) Jai Pal Singh, 04/12/2006 05/12/2006 15.12.2006
2446/SD
44. Ct. (Exe.) Munesh Kr., 04/12/2006 05/12/2006 15.12.2006
976/SD
45. Ct. (Exe.) Sunder Lal, 04/12/2006 05/12/2006 15.12.2006
444/SB
46. Ct. (Exe.) Sunil Kr., 04/12/2006 05/12/2006 15.12.2006
287/SB
47. Ct. (Exe.) Vinay Pal 04/12/2006 05/12/2006 15.12.2006
Singh,
19063/NW
DETAILS OF POLICE OFFICIALS WHO WERE
GRANTED OUT OF TURN PROMOTION DURING THE
YEAR-2007
SL. Rank Name & No. Date of ICM Date of Date of
No. approval by Promotion
CP
1. SI (Exe.) Kailash Bisht, 19/04/2006 19/04/2006 08.05.2007
D/726
2. SI (Exe.) Pawan Kr., 14/12/2005 14/12/2005 08.05.2007
D/1187
3. SI (Exe.) Vivekanand 12/04/2006 12/04/2006 08.05.2007
Jha, D/3944
4. SI (Exe.) Naresh Kr., In pursuance of 04.05.2007
D/3773 the judgment of
the Hon'ble
Delhi High
Court in WP (C)
No.11732/2005
5. ASI (Exe.) Mohinder 09.08.2007 07.11.2007
Singh,
3026/SW &
(4482/D)
6. HC (Exe.) Rakesh Kr., 23/06/2006 23/06/2005 08.05.2007
341/SB
7. HC (Exe.) Ranjit Kr., 23/06/2005 23/06/2005 08.05.2007
385/SB
8. HC (Exe.) Manoj Kr., 10/05/2007 19/05/2007
320/E
9. HC (Exe.) Rajbir Singh, 19/07/2007 19/07/2007
385/SB
10. Ct. (Exe.) Kailash 13/01/2007 13/01/2007
Chand,
2213/SD
11. Ct. (Exe.) Dushyant, 17/01/2007 18.01.2007
1269/W
12. Ct. (Exe.) Mahesh Kr., 21/02/2007 22.02.2007
1884/C
13. Ct. (Exe.) Virender 10/05/2007 10.05.2007
Singh, 1723/E
14. Ct. (Exe.) Balmiki 28/05/2007 28.05.2007
Mishra,
1147/W
15. Ct. (Exe.) Sanjay Kr., 27/08/2007 29.08.2007
1825/SW
16. Ct. (Exe.) Satpal Singh, 12/04/2007 16/04/2007 24.07.2007
306/Cr.
17. Ct. (Exe.) Surender Kr., 24/04/2007 26/04/2007 24.04.2007"
443/SB
34. It is apparent that out of turn promotions have been
given to as many as 25 police officers in years subsequent to
the year when the act of gallantry was performed as also the
year in which the Commissioner granted approval to the
recommendations of the Incentive Committee. To highlight,
SI Arvind Kumar at serial No.2 of the list of persons who
were granted out of turn promotion in the year 2006 was
recommended for promotion on 16.4.2002 and the
Commissioner gave the necessary approval on 27.4.2002.
He was promoted on 2.1.2006."
6. The decision of the Division Bench has since attained finality
and thus the respondents have granted out of turn promotion to the
petitioners as per order dated July 11, 2011. The order issued is with
prospective date. Petitioners filed applications before the Tribunal praying
that directions be issued to the respondent to grant them promotion with
retrospective date i.e. from the date when vacancies existed.
7. We have noted hereinabove that apart from the petitioners, HC
Yashpal and HC Surender had likewise been denied the benefit of out of
turn promotion. Said two persons had not filed any original applications, as
were filed by the petitioners when the first round of litigation was fought.
8. But since the petitioners had succeeded in the first round of
litigation not only before the Tribunal but even this Court, and HC Yashpal
as also HC Surender being similarly situated, the Department considered
even their case as well and included their names for out of turn promotion
along with those of the petitioners when order was issued on April 11, 2011.
9. Since even said two persons were granted promotion with
prospective effect, they filed original applications before the Tribunal
praying that they be promoted from the date when vacancies accrued. The
Original Applications filed by said two persons were allowed. Notional
promotion from a back date i.e. when vacancies accrued stands granted to
them by the department which had accepted the decision of the Tribunal in
their favour.
10. But the petitioners found failure before the Tribunal which has
taken a very pedantic view. The view taken by the Tribunal is that because
the petitioners litigated at the first round but HC Yashpal and HC Surender
did not litigate and since the view taken by the Tribunal in the Original
Applications filed by the petitioners was affirmed by a Division Bench of
this Court, the opinion of the Tribunal had merged with the decision of this
Court thereby denuding the Tribunal of any powers to pass any orders with
respect to its earlier decision. The Tribunal forgot that it was subsequent
events which were being made the foundation of the claim. But even the
petitioners are to be blamed because rather than seeking a substantive relief
by way of substantive petition they chose to file review applications in the
disposed of matters; ignoring that there were no clear cut directions in the
orders passed by the Tribunal at the first round of litigation that promotions
be granted from a retrospective date. The reason being that said issue had
not even been born then.
11. But instant writ petitions can always be treated as a substantive
proceeding.
12. The undisputed facts therefore would be that the petitioners
were found being entitled to out of turn promotion. The vacancies to which
they have to be adjusted would be the ones which accrued immediately in
the year or the year thereafter as also the further year thereafter, till a
vacancy became available in the 5% quota for the first time. This view has
already been taken by a Division Bench of this Court, which has attained
finality. Two other similarly placed persons have been granted notional
promotion from the date when vacancy for their post accrued in the
promotional post.
13. Thus, we dispose of the petitions directing that the petitioners
would be entitled to the same benefit of notional promotion as has been
granted by the Department to HC Yashpal and HC Surender. The
petitioners would be granted notional promotion with effect from the date
when vacancies ensued in the promotional posts. The petitioners would be
entitled to seniority in the promotional post by treating them as having been
promoted from said date as per the rule applicable to inter-se seniority of
promotees and direct recruits. Denying actual wages on the principle of not
being entitled to wages for a higher post on account of not discharging the
onerous duties of the higher posts, petitioners would be entitled to be
notionally placed in the pay scale of the promotional post and receive
notional pay increment, with actual pay with the benefit of notional pay
increment from the date they assumed charge of the promotional post.
14. Compliance be made within 12 weeks from today.
15. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
MARCH 06, 2013
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