Delhi High Court
Surender Singh vs Narender Kumar And Ors on 11 March, 2016
$~18&19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5043/2011 & CM No.5455/2014
Date of decision: 11th March, 2016
SURENDER SINGH ..... Petitioner
Through: Mr. Jagjit Singh, Advocate
versus
NARENDER KUMAR AND ORS. ..... Respondents
Through: Mr. Satyakam, ASC for respondent
Nos.2 to 5
WITH
+ W.P.(C) 5044/2011 & CM No.581/2013
RAJINDER KUMAR ..... Petitioner
Through: Mr. Jagjit Singh, Advocate
versus
NARENDER KUMAR AND ORS ..... Respondents
Through: Mr. Satyakam, ASC for respondent
Nos.2 to 5
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J. (ORAL)
These two writ petitions by Surender Singh and Rajinder Kumar
impugn a common order dated 3.5.2011 passed in OA No.699/2011 filed by
Narendra Kumar, the first respondent before us.
2. The first respondent was appointed as Sub-Inspector (Operations) in
Delhi Police on 20.8.2004 as a direct recruit.
3. The Commissioner of Police had called for service records of the first
respondent and the two petitioners for promotion to the post of Motor
Transport Inspector (MT Inspector for short). The first respondent had
objected. The contention was that, as per the Recruitment Rules („RRs‟), the
two petitioners were not eligible and he was the only eligible candidate who
could be considered for promotion to the post of MT Inspector.
4. The impugned order dated 3.5.2011 passed by the Tribunal has held
that the petitioners were then not eligible for consideration for promotion to
the post of MT Inspector, and the Commissioner of Police was directed to
consider the first respondent for the said post on merits. The Tribunal, while
passing the impugned order, has quashed and set aside two Notifications
dated 24.9.2010 and 16.11.2010.
5. The grievance of the two petitioners is two-fold. Firstly, the
petitioners were eligible for being considered for promotion to the post of
MT Inspector. The second grievance is against quashing of the Notifications
dated 24.9.2010 and 16.11.2010. It is submitted that the Commissioner of
Police, while implementing the impugned order, had demoted the two
petitioners.
6. We will begin by examining the first contention and notice the facts in
respect of the petitioners:-
Surender Singh
(i) Surender Singh was appointed as temporary Constable (Executive)
in Delhi Police on 1.8.1977. He was promoted as Head Constable
(Executive) with effect from 30.10.1989.
(ii) Surender Singh was transferred from the Executive Cadre to Motor
Transport Cadre as Head Constable/Motor Transport (Operations)
with effect from 12.6.2003 by order of the same date as per Rule
17A (XV) of the Delhi Police (Appointment and Recruitment)
(Amendment) Rules, 2002.
(iii) Surender Singh was promoted to the rank of Assistant Sub
Inspector /Motor Transport (Operations) with effect from
12.6.2008 after completion of five years of service as Head
Constable/Motor Transport (Operations) under Rule 17A (XV) of
the Delhi Police (Appointment and Recruitment) (Amendment)
Rules 2004, vide order dated 25.9.2008. This promotion has not
been set aside/quashed.
(iv) By another order dated 19.12.2005, the seniority of Surender Singh
was re-fixed in the rank/cadre of Head Constable/Motor Transport
(Operations) with effect from 30.10.1989, i.e., the date on which
he was promoted as Head Constable (Executive) in the Executive
Cadre.
(v) On the directions of the Government of National Capital Territory
of Delhi („GNCTD‟), vide letter dated 27.4.2010, Surender Singh
was granted ante-dated seniority in the rank of Assistant Sub-
Inspector/Motor Transport (Operations) and was deemed to be
promoted to the said post with effect from 30.10.1994 by the
Police Headquarters (PHQ) Notification dated 24.9.2010. By
another PHQ Notification dated 16.11.2010, Surender Singh was
deemed to be promoted as Sub-Inspector/Motor Transport
(Operations) with effect from 1.10.2002. As noted above, these
two Notifications have been quashed by the Tribunal.
Rajinder Kumar:-
(i) Rajinder Kumar was appointed as Constable (Driver) in the Delhi
Police on 28.10.1985. He was promoted as Head Constable
(Driver) with effect from 1.1.1989.
(ii) Rajinder Kumar was permanently transferred from the Driver
Cadre to Motor Transport Cadre as Head Constable/Motor
Transport (Operations) with effect from 2.8.2004 vide PHQ order
of the said date. This transfer and appointment as Head
Constable/Motor Transport (Operations) was as per Rule 17A(XV)
of the Delhi Police (Appointment and Recruitment) (Amendment)
Rules, 2002.
(iii) On completion of five years of service as Head Constable/Motor
Transport (Operations), Rajinder Kumar was promoted to the rank
of Assistant Sub Inspector /Motor Transport (Operations) with
effect from 2.8.2009, as per Rule 17A (VIII) of the Delhi Police
(Appointment and Recruitment) (Amendment) Rules, 2004 vide
PHQ letter dated 8.12.2009. This letter and promotion to the post
of Assistant Sub Inspector/Motor Transport (Operations) has not
been set aside/quashed.
(iv) Rajinder Kumar was granted seniority as Head Constable/Motor
Transport (Operations) by PHQ order dated 25.11.2008 with effect
from 1.1.1989, the date on which he was promoted as Head
Constable (Driver) in the Driver Cadre. This was on the basis that
Surender Kumar had been granted similar benefit by the GNCTD
vide letters dated 19.12.2005 and 30.8.2007.
(v) As in the case of Surender Singh, by two Notifications dated
24.9.2010 and 16.11.2010, issued by the PHQ, Rajinder Kumar was
given ante-dated promotion/seniority as Assistant Sub
Inspector/Motor Transport (Operations) with effect from 1.1.1994
and was promoted as Sub-Inspector/Motor Transport (Operations)
with effect from 1.1.2000. These two Notifications have been
struck down by the Tribunal.
7. On the first aspect and question, we agree with the Tribunal as the
findings are in accordance with law and do not require any interference. The
Motor Transport (Operations) Cadre is a separate and distinct cadre. The
two petitioners, before their absorption as Head Constable/Motor Transport
(Operations) with effect from 12.6.2003 in the case of Surender Kumar and
2.8.2004 in the case of Rajinder Kumar, were working as Head Constable
(Executive) and Head Constable (Driver) in separate cadres. Surender Singh
was in the Executive Cadre and Rajinder Kumar was in the Driver Cadre.
Their appointments as Head Constables/Motor Transport (Operations) was
as per Rule 17A (XV) of the Delhi Police (Appointment and Recruitment)
(Amendment) Rules, 2002. The relevant portion of the said Rule reads:-
"17-A (XV)
1. Name of the post : M.T. Head Constable (Operational)
2. No. Of posts : One
3. Classification : Group „C‟(Non-gazetted) (Technical)
4. Scale of pay : Rs.3200-100-4900
5.Whether selection post or
non-selection post : Non-Selection"
xxxx
11. Method of recruitment whether By transfer
by direct recruitment or by promotion
or by deputation/transfer & percentage
of the vacancies to be filled by various methods.
12. In case of recruitment by promotion/transfer/ Transfer from
deputation, grades from which promotion/ amongst Matricu-
deputation/transfer to be made. late confirmed
Head Constables
with 5 years
service in the
grade.
13. If a DPC exists what is its Group „C‟DPC
composition List (Technical) as
provided in rule 8
of the Delhi
Police(Promotion
and Confirmation)
Rules, 1980.
[Sub-rule 12, as quoted above, was amended and "Constable" was
substituted by "Head Constables" vide Notification dated 27.3.2002, i.e..,
before the two petitioners, Surender Singh and Rajinder Kumar, were
absorbed in the cadre of Head Constable/Motor Transport (Operations).]
8. This being the Rule position, we fail to understand how the two
petitioners could have been granted ante-dated promotion to the higher post
of Assistant Sub Inspector/Motor Transport (Operations) with effect from
30.10.1994 and then as Sub Inspector/Motor Transport (Operations) with
effect from 1.10.2002 in the case of Surinder Kumar and Assistant Sub
Inspector/Motor Transport (Operations) with effect from 1.1.1994 and Sub
Inspector/Motor Transport (Operations) with effect from 1.1.2000 in the
case of Rajinder Kumar by two Notifications dated 24.9.2010 and
16.11.2010. The two petitioners were absorbed on transfer in the cadre of
Head Constable/Motor Transport (Operations) only on 12.6.2003 in the case
of Surinder Singh and 2.8.2004 in the case of Rajinder Kumar. They could
not have been promoted retrospectively on dates before they had even joined
the said cadre.
9. It is an accepted and admitted position that Assistant Sub
Inspector/Motor Transport (Operations) is a promotional post and the
relevant Rule stipulates:-
"17-A (VIII)
1. Name of the post.... M.T. Assistant Sub-Inspector (Operational)
2. Number of posts.... [04]
3. Classification ..... Group „C‟(Non-gazetted) (Technical)
4.Scale of pay..... [Rs.4000-100-6000]
xxxxxx
11. Method of recruitment By promotion
whether by direct recruitment
or by promotion or by depu-
tation/transfer & percentage
of the vacancies to be filled
by various method.
12.In case of recruitment by [Promotion
promotion/transfer/deputa- Confirmed HC/MT (Ops) with five years
tion,grades from which/ service in the grade having current
promotion/deputation/transfer driving licence for HMV and MC]
to be made.
13. If a DPC exists what Group „C‟ DPC List-D (Technical) as
is its composition provided in rule 8 of the Delhi Police
(Promotion & Confirmation) Rules, 1980."
[The quoted sub-rule 12 is the amended rule w.e.f. 8.7.2004.]
Thus, Motor Transport/Assistant Sub Inspector(Operations) is a promotional
post and confirmed Head Constables/Motor Transport (Operations) with five
years of service in the grade, and having a current driving license for HAV
and MC are eligible. The two petitioners could not have been promoted as
Assistant Sub Inspectors in the year 1994, when they were appointed to the
feeder post of Head Constable (Operations) in 2003/2004.
10. Similarly, the post of Motor Transport/Sub-Inspector (Operational) is
a promotional post, failing which by direct recruitment, as per the Delhi
Police (Appointment and Recruitment) Rules 1980, the relevant portion of
which reads as under:-
"17-A (III)
1. Name of the post..... M.T. Sub-Inspector (Operational)
2. Number of posts..... Five
3. Classification ....... Group „C‟(Non-gazetted) (Technical)
4. Scale of pay....... Rs.5500-175-9000
5.Whether selection post or (i) Non-selection, if the post is filled
non-selection post by promotion, and
(ii) „Not applicable‟ when the post is
filled through direct recruitment
6. Whether benefit of added years Yes.
of service admissible under rule 30
of the C.C.S. (Pension) Rules, 1972
xxxxxxx
11. Method of recruitment By promotion, failing which by direct
whether by direct recruitment recruitment.
or by promotion or by depu-
tation/transfer & percentage
of the vacancies to be filled
by various method.
12.In case of recruitment by:- Promotion from amongst
Promotion/transfer/deputa- confirmed M.T. ASI (Operational)
tion grades from which with five years service in the grade,
promotion/deputation transfer having current driving licence for
to be made. heavy vehicles.
13. If a DPC exists what i) Group „C‟ DPC (List „E‟Technical)
is its composition provided in rule 8 of the Delhi Police
(Promotion & Confirmation) Rules,
1980, in case of promotion.
ii)Selection Board as provided in rule
8 of these rules in case of direct
recruitment.
14. Circumstances in which Not applicable."
UPSC is to be consulted in
Making recruitment
Sub-Rule 12 states that the Motor Transport/Assistant Sub Inspectors
(Operations) with five years of service in the grade and having current
driving license for heavy vehicles are eligible for promotion as Motor
Transport/SI (Operations).
11. The effect of the two Notifications, which were rightly quashed by the
Tribunal, was that the two petitioners had been promoted as Assistant Sub
Inspector/Motor Transport (Operations) and then as Sub Inspector/Motor
Transport (Operations) even before they were absorbed on transfer and had
become Head Constable/Motor Transport (Operations). This was clearly
wrong and, therefore, was rightly set at naught by the Tribunal.
12. Learned counsel for the petitioners has referred to the decision of the
Supreme Court in Chaman Singh v. Delhi Administration & Ors. JT
1998(9) SC 408 wherein Rule 17A (VIII) of the Delhi Police (Appointment
and Recruitment) Rules, for promotion to the post of Assistant Sub
Inspector/Motor Transport (Operations) were examined and interpreted. The
question which had arisen was whether the service rendered by the petitioner
therein as Head Constable/Motor Transport (Operations) before he was
confirmed could be counted as qualifying service for the purpose of
promotion. The Supreme Court accepted the said plea and held that when
the Head Constable was confirmed, he would get benefit of the past service
when he was already working at that post. The petitioner therein was
appointed as a Head Constable/Motor Transport (Operations) on 21.2.1984
and was confirmed at the same post on 25.1.1989. The question which had
arisen before the Supreme Court was whether this period between 21.2.1984
and 25.1.1989 could be treated as qualifying service for promotion to the
post of ASI/Motor Transport (Operations). This is not the issue and question
before us.
13. In view of the aforesaid discussion, we do not find any reason to
interfere with the decision of the Tribunal on the first aspect.
14. On the second aspect, we observe that the issue requires consideration
by the official respondents. The reason is that the said respondents had
accepted the contention of the petitioners, Surinder Singh and Rajinder
Kumar and had issued two Notifications dated 24.9.2010 and 16.11.2010,
which, as noted above, have been quashed. Further, time has lapsed, and the
two petitioners have rendered service in the Motor Transport operational
cadre since they were absorbed. The question that arises, relates to the dates
from which the two petitioners were eligible and entitled to be considered
for promotion as Assistant Sub Inspector/Motor Transport (Operations) and
then as Sub-Inspector/Motor Transport (Operations). As the two
Notifications dated 24.9.2010 and 16.11.2010 have been quashed, the said
exercise would have to be undertaken afresh. Possibly, the dates of
promotion to the post of Assistant Sub Inspector (Operations) would not
undergo a change and the two petitioners have to be considered for
promotion as Sub Inspectors (Operations). We accordingly direct the official
respondents to carry out the said exercise. We give permission to the two
petitioners to make a representation to the official respondents, who will,
after considering the representation and the service rules, as applicable,
decide the issue in accordance with law and communicate the order to the
two petitioners as expeditiously as possible. The question and issue decided
herein will not be raised and agitated. In terms of the order passed by the
official respondents, the question of payment of salary/recovery, etc. will be
also decided and adjudicated in accordance with law. In case the petitioners
have any grievance against the order so passed, it will be open to them to
challenge the order, in accordance with law.
15. The writ petitions are accordingly disposed off. There will be no order
as to costs.
SANJIV KHANNA, J
ASHUTOSH KUMAR, J
MARCH 11, 2016/tp
