Delhi High Court
Commissioner Of Police And Ors. vs Constable (Mounted) Laxmi ... on 3 March, 2015
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3612/2014 & CM APPL. No.7365/2014
COMMISSIONER OF POLICE AND ORS. ..... Petitioners
Through Mr. Ameit Andlay & Mr. Arun K.
Sharma, Advocates
versus
CONSTABLE (MOUNTED) LAXMI NARAYAN... Respondent
Through Mr. Pradeep Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
ORDER
% 03.03.2015
KAILASH GAMBHIR, J. (ORAL)
1. By this Petition filed under Articles 226 and 227 of the
Constitution of India, the petitioners/ Union of India seek to challenge the
order dated 19.12.2013 passed by the learned Central Administrative
Tribunal, Principal Bench, New Delhi (hereinafter referred to as the
'CAT') whereby the learned Tribunal allowed the Original Application
(in short 'OA') No.2837/2011 preferred by the respondent with a
direction to the petitioners/ Union of India to consider the claim of the
respondent for 'out of turn promotion' to the rank of Head Constable
strictly in terms of Standing Order No. 4/1989.
2. Assailing the said order, Mr. Ameit Andlay, the learned counsel for
the petitioners/ Union of India submits that the case of the respondent
cannot be considered under the earlier Standing Order No.4/1989, as the
same was superseded by the new Standing Order No. 4/2003, and
subsequently a fresh Standing Order No. 4-A/2009 was issued, which was
applicable to the respondent at the relevant time. As per this latest
Standing Order, the respondent did not fulfil the eligibility criteria for the
purpose of 'out of turn promotion' to the next higher rank of Head
Constable.
3. The learned counsel also submits that the achievements of the
respondent of winning i) one Gold Medal, Normal Medium (Individual)
Event and ii) one Gold Medal in Normal Medium (Team) Event in the
National Equestrian Championship 2006, falls short of the laid down
requirement for 'out of turn promotion' to the next higher rank of Head
Constable. Based on these submissions, the learned counsel for the
petitioners/ Union of India submits that the impugned order dated
19.12.2013 passed by the learned CAT is excessive, illegal and perverse
on the very face of it.
4. Opposing the present petition, Mr. Pradeep Kumar, the learned
counsel for the respondent submits that in the year 2009, the petitioners
had promoted Constable Dharam Pal to the post of Head Constable
(Mounted) and similarly in the year 2007 one Radhey Shyam was granted
'out of turn promotion' to the post of Head Constable (Mounted) whereas
in the case of the respondent, the petitioners have been taking a different
stand in a most illegal and arbitrary manner with a view to defeat his
justified and legitimate claim for 'out of turn promotion' to the rank of
Head Constable. The learned counsel also submits that the respondent
became eligible for promotion in December, 2006 and earlier request of
the respondent was turned down by the petitioners vide order dated
24.02.2009 on the ground that no post of Head Constable (Mounted) was
vacant at that time and later the same was turned down due to the
respondent not fulfilling the eligibility criteria in terms of Standing Order
No.4-A/2009.
5. The learned counsel further submits that despite the direction given
by the learned CAT vide order dated 03.02.2010 in the earlier OA
No.2389/2009 to the petitioners to consider the respondent's claim for
'out of turn promotion' in the light of the similar relief granted to his
counterparts within a period of three months from the date of the said
order, the petitioners had again rejected the claim of the respondent
without properly carrying out a comparison with the case of other
Constables who were granted 'out of turn promotion' only by placing
reliance on the Standing Order No.4-A/2009. Based on these
submissions, the learned counsel for the respondent submits that the
direction given by the learned CAT vide order dated 03.02.2010 cannot
be faulted with and the same deserves to be upheld.
6. We have the learned counsel for the parties.
7. The respondent who was an applicant before the learned CAT is a
Constable (Mounted) who has shown excellent record in the equestrian
sport and won medals in various championships, including two medals
one each in normal medium (individual) in the National Equestrian
Championship (NEC), 2006. As per the case set up by the respondent
before the learned CAT, he was entitled to ad- hoc, 'out of turn
promotion' to the rank of Head Constable as an incentive for outstanding
performance in the field of sports.
8. The Standing Order No.4-A/2009 denied promotion to the
respondent and his various representations were rejected. He had
approached the learned CAT vide OA No. 2389/2009, wherein the
learned CAT had ordered the petitioners vide order 03.02.2010 to
consider the claim of the respondent for 'out of turn promotion' in the
light of the similar relief granted to his counterparts within a period of
three months from the date of the said order. In pursuance of the direction
of the learned CAT, the petitioners passed an order on 14.08.2010
whereby they again rejected his claim. The respondent had preferred a
MA No. 3310/2010 in OA No.2389/2010, which was subsequently,
withdrawn by him to file a fresh OA to challenge the said order dated
14.08.2010. The learned CAT after taking into consideration the rival
stand of both the parties, again directed the petitioners to consider of the
applicant for out of turn promotion to the rank of Head Constable strictly
in terms of Standing Order No.4/1989 without considering the question of
availability of vacancies in the same manner in which similar cases were
considered earlier.
9. In our view, this direction given by the learned CAT for
consideration of the case of the respondent for 'out of turn promotion' to
the rank of Head Constable in terms of Standing Order No.4/1989 is not
sustainable in the eyes of law. The case of the respondent for the first
time was considered by the petitioners on 24.02.2009, when his case was
governed by Standing Order No. 4/2003 which did not have the provision
for 'out of turn' promotion for showcasing outstanding performance in
sports. Another representation was made by the respondent on
06.03.2009; however by that time the Standing Order No. 4-A/2009
already held the field. As per the Standing Order No. 4-A/2009, the
respondent falls short of the laid down requirement and this position has
not been disputed by the learned counsel for the respondent. In the year
2003 also the case of the respondent for out of turn promotion could not
have been considered as the said Standing Order No.4/2003 made no
provision for 'out of turn promotion' for outstanding performance in
sports. Standing Order No.4/2003 clearly states that it superseded the
earlier Standing Order No.4/1989. In these circumstances, to give a
direction to the petitioners/ Union of India to consider the claim of the
respondent in terms of Standing Order No. 4/1989 which stood
superseded at the time of consideration of the case of the respondent
would amount to giving illegal direction to the petitioners/ Union of
India. In so far as the comparison of the case of the respondent with other
cases of Constables Dharam Pal and Radhey Shyam is concerned, we find
no justifiable ground for the petitioners having considered their cases
under Standing Order No.4/ 1989 based on their achievements in sports
for the relevant period when the 2003 Standing Order already held the
field, and we are of the view that Article 14 of the Constitution of India
envisages a positive concept which can't be enforced in a negative
manner and the same view is reiterated by the Hon'ble Supreme Court in
a catena of cases. The Hon'ble Supreme Court in the case of State
of Bihar v Kameshwar Prasad Singh AIR 2000 SC 2306 held:
"The concept of equality as envisaged under Article 14 of the
Constitution is a positive concept which cannot be enforced in a
negative manner. When any authority is shown to have
committed any illegality or irregularity in
favour of any individual or group of individuals other
cannot claim the same illegality or irregularity on ground
of denial thereof to them. Similarly wrong judgment passed in
favour of one individual does not entitle others to claim
similar benefits."
10. In this regard the Supreme Court in Gursharan Singh &
Ors. v. NDMC & Ors. [1996 (2) SCC 459] held that citizens have
assumed wrong notions regarding the scope of Article 14 of the
Constitution which guarantees equality before law to all citizens.
Benefits extended to some persons in an irregular or illegal manner
cannot be claimed by a citizen on the plea of equality as enshrined in
Article 14 of the Constitution by way of writ petition filed in the High
Court. The Court observed:
"Neither Article 14 of the Constitution conceives within
the equality clause this concept nor Article 226 empowers the
High Court to enforce such claim of equality before law. If such
claims are enforced, it shall amount to directing to
continue and perpetuate an illegal procedure or an illegal
order for extending similar benefits to others. Before a
claim based on equality clause is upheld, it must be
established by the petitioner that his claim being just and legal,
has been denied to him, while it has been extended to others
and in this process there has been a discrimination."
11. Therefore, in the light of the settled legal position we are of the
considered view that the respondent cannot claim a right based on
negative equality. Consequently, the present petition is allowed. The
impugned order dated 19.12.2013 is set aside. All the pending
applications are disposed of in above terms.
KAILASH GAMBHIR, J.
I.S.MEHTA, J.
MARCH 03, 2015
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