Commissioner Of Police vs Badal Singh
2013 Latest Caselaw 5513 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: November 28, 2013

+                         WP (C) 5414/2013

      COMMISSIONER OF POLICE                   .....Petitioner
              Represented by: Mr.V.K.Tandon, Advocate with
                              Mr.Yogesh Saini, Advocate

                                     versus

      BADAL SINGH                                       .....Respondent
               Represented by:         Ms.Jasvinder Kaur, Advocate

      CORAM:
      HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR.JUSTICE V. KAMESWAR RAO

PRADEEP NANDRAJOG, J. (Oral)

1. Having heard learned counsel for the parties, at the outset we must express our anguish at the manner in which the administrative wing of the Delhi Police is functioning. The cause of our anguish is the undernoted information provided to us in the writ petition pertaining to the penalties which were imposed upon the respondent:-

"1. CENSURE DATED 19.9.81 FOR NOT WRITING THE CASE DIARY IN CASE FIR NO.424/80 U/S 420 IPC PS SEEMA PURI.

2. CENSURE DATED 25.5.87 FOR SUBMITTING FALSE REPORT IN RESPECT OF PASSPORT VERIFICATION.

3. CENSURE DATED 9.11.87 FOR PROCEEDING ON TRANSFER WITHOUT HANDING OVER THE CHARGE.

4. CENSURE DATED 7.12.87 FOR SPEAKING A LIE BEFORE THE COURT.

5. CENSURE DATED 15.12.87 FOR NOT WRITING CASE DIARY IN CASE FIR NO.262/87 U/S 420 IPC PS YAMUNA VIHAR.

6. CENSURE DATED 15.12.87 FOR NOT WRITING CASE DIARY IN CASE FIR NO.253/87 U/S 420 IPC PS YAMUNA VIHAR.

7. CENSURE DATED 15.12.87 FOR NOT WRITING CASE DIARY IN CASE FIR NO.264/87 U/S 420 IPC PS YAMUNA VIHAR.

8. CENSURE DATED 15.12.87 FOR NOT WRITING CASE DIARY IN CASE FIR NO.254/87 U/S 420 IPC PS YAMUNA VIHAR.

9. CENSURE DATED 15.12.87 FOR NOT WRITING CASE DIARY IN CASE FIR NO.252/87 U/S 420 IPC PS YAMUNA VIHAR.

10. CENSURE DATED 18.1.88 FOR NOT WRITING CASE DIARY IN CASE FIR NO.257/87 U/S 420 IPC PS YAMUNA VIHAR.

11. CENSURE DATED 18.1.88 FOR NOT WRITING CASE DIARY IN CASE FIR NO.263/87 U/S 420 IPC PS YAMUNA VIHAR.

12. CENSURE DATED 18.1.88 FOR NOT WRITING CASE DIARY IN CASE FIR NO.255/87 U/S 420 IPC PS YAMUNA VIHAR.

13. CENSURE DATED 18.1.88 FOR NOT WRITING CASE DIARY IN CASE FIR NO.256/87 U/S 420 IPC PS YAMUNA VIHAR.

14. CENSURE DATED 22.2.88 FOR FAILING TO PREVENT THE SALE OF ILLICIT LIQUOR IN HIS AREA.

15. CENSURE DATED 31.5.94 FOR NEGLIGENT

INVESTIGATION OF CASE FIR NO.123/90 U/S15/61/85 NDPS ACT PS CHANDNI MAHAL."

2. The petitioner was appointed on probation for two years as a Sub- Inspector on June 29, 1978 and neither was the probation confirmed nor terminated. No order was passed continuing the probation and thus it would be a case of deemed continuation of the probation for the reason Sub-Rule (ii) of Rule 5 of the Delhi Police (Promotion & Confirmation) Rules, 1980 reads as under:-

"5 (ii) All promotions from one rank to another against temporary or permanent vacancies, except in the case of ad-hoc arrangements shall be on officiating basis. The competent authority on completion of probation period of two years may asses the work and conduct of the officer himself and in case the conclusion is that the officer is fit to hold the higher grade, he will pass an order declaring that the person concerned has successfully completed the period of probation. If the competent authority considers that the work of the officer has not been satisfactory or needs to be watched for some more time, he may recruit him to the post or grade from which he was promoted, or extend the period of probation, as the case may be."

3. Now, if the information, which is correct and undisputed, as noted by us in paragraph 1 above is correct. We are pained to note that the probation was not terminated and the respondent was allowed to continue to work.

4. Now to the facts.

5. Under the Assured Career Progression Scheme if a Government servant does not earn a promotion within 12 years of service for want of a promotional post but otherwise is fit to be promoted, benefit of financial upgradation in the pay by placing the employee in the next above pay scale has to be granted. The ACP scheme came into existence in the year 1999 and prior thereto a promotion had to be earned on merit if vacancies

existed.

6. Respondent's entitlement to be considered for promotion matured in the year 1994 when he came within the zone of consideration and the DPC which met on August 12, 1994 kept his name in a sealed cover for the reason the respondent was an accused in an FIR registered by CBI for offences punishable under Section 193/218/220/343/348/34 IPC. The respondent was under suspension from February 24, 1994.

7. The respondent was acquitted on August 09, 2010. He superannuated on January 31, 2002.

8. In the meanwhile, at another DPC held on December 24, 1998, the recommendations pertaining to the respondent were once again kept in a sealed cover. Pertaining to fitness envisaged under the ACP scheme, recommendations were kept in a sealed cover for the reason the criminal trial pertaining to the FIR referred to in para 6 above had not concluded.

9. Pertaining to the ACP scheme, recommendation whereof was kept in a sealed cover was opened along with the recommendations of the two DPCs held in the years 1994 and 1998. Being opined unfit to be promoted at the three DPCs the recommendations were given effect to i.e. neither was the respondent promoted nor ACP benefit given.

10. Even at a DPC held on November 09, 2011, which was in the nature of a review DPC as of August 12, 1994 and December 24, 1998 the respondent was opined to be unfit to be promoted.

11. For the reason the review DPC noted that the service record of the respondent was 'indifferent' finding the word 'indifferent' to be vague, applying the law declared in the decision reported as (2009) 16 SCC 146 Abhijit Ghosh Dastidar Vs. UOI & Ors., the Tribunal has directed respondent to be promoted on notional basis with effect from August 12, 1994 and grant of ACP benefit with effect from August 09, 1999.

12. Updating the data of the penalties levied upon the respondent apart from the 15 noted by us in paragraph 1 above we find that a penalty of reduction of pay by one stage for a period of one year was also imposed upon the respondent on February 03, 1998.

13. In spite of aforesaid record and the below benchmark ACR gradings, which admittedly were never conveyed to the respondent for his response, the Tribunal has directed as aforesaid.

14. Now, prior to the decision in Abhijit Ghosh Dastidar's case (supra) the law was that only adverse entries in the ACR gradings were to be conveyed to the appraisee to enable the apraisee to make a representation against the adverse remarks. It was only in the year 2009 that the law was changed to include below benchmark ACR gradings on account of the same having an adverse impact on the promotion of the appraisee. But the law was to provide the appraisee the below benchmark gradings to enable the apraisee to make a representation.

15. Thus, the direction issued by the Tribunal to promote the respondent is incorrect. At best the direction could be to provide the below benchmark ACR grading to the respondent to enable him to make a representation thereagainst with further direction that if the representation was accepted and ACR grading was upgraded, a review DPC to be held.

16. Taking corrective action, under normal circumstances we would have done so, but are not so directing because this would be an idle formality.

17. We have noted the various penalties, being 16 in number, which were imposed upon the respondent. All of them have attained finality. Irrespective of the ACR gradings, said penalties by themselves would be sufficient to deny respondent a right to be declared fit to be promoted

whether for purposes of a regular promotion or grant of ACP benefit. In fact, the service record would warrant the probation to be terminated, an action regretfully not taken by the department.

18. As regards the view taken by the Tribunal that the word 'indifferent' used by the Departmental Promotion Committees to record reasons as to why respondent was unfit in the context of recording that the service record of the respondent would show that the same is indifferent, is a vague expression, we disagree for the reason, the dictionary meaning of the word indifferent, amongst others includes : 'mediocre', 'not especially good', 'apathetic' and 'bad'.

19. We wish, that as we have done, the learned members of the Tribunal could have consulted a dictionary.

20. The writ petition is allowed. Impugned order dated March 06, 2013 is set aside. OA No.2562/2012 filed by the respondent is dismissed.

21. No costs.

(PRADEEP NANDRAJOG) JUDGE

(V. KAMESWAR RAO) JUDGE

NOVEMBER 28, 2013 mamta