Devender Saini vs GNCT Of Delhi & Others

Mohd. Jamshed, Member (A)

The applicant joined as Sub Inspector (SI) in Delhi Police in the year, 1990 and was confirmed as SI in 1992. He was, however, found ‘unfit’

for promotion as Inspector by the DPC 2007. Later a review DPC in 2013 declared him ‘fit’’ and he was promoted as Inspector w.e.f.

28.05.2011. Subsequent review DPC held on 26.09.2019 did not find him ‘fit’ for antedation of his promotion w.e.f. 30.11.2007. Aggrieved by

the decision of the review DPC, the applicant filed a representation seeking antedation of his promotion which was also rejected by the respondents.

By filing the present OA, the applicant is challenging the impugned orders dated 05.05.2020 and 09.10.2019, and seeking directions for antedation of

his promotion w.e.f. 2007.

The applicant contends that he was not considered for promotion by various DPCs held in 2008, 2009, 2010, 2011 and 2012 as in all these DPCs,

sealed cover procedure was adopted in view of the pendency of a criminal case registered under PoC Act, against him. Subsequently, he was

acquitted in the criminal case and his suspension was revoked. The applicant’s name was also removed from the secret list in 2013. The review

DPC held on 0 5.12.2013, considered his case afresh and graded the applicant as ‘fit’ for including his name in the promotion list w.e.f.

28.05.2011. He was subsequently promoted in the rank of Inspector w.e.f. 28.05.2011 vide order dated 13.12.2013. He contends that his batch mates

have been working as Inspectors since 30.11.2007 and that despite his acquittal in the criminal case and his name having been deleted from the secret

list, he has not been promoted w.e.f. 2007. He, further, contends that two penalties of censure imposed upon him on 12.07.2000 and 25.09.2006 were

also subsequently set aside by the Appellate Authority vide orders dated 30.03.2019. A review DPC was held on 2 6.09.2019 and despite the se

punishments of censure having been set aside, the review D PC did not consider his case for antedation of promotion w.e.f. 2007. The applicant was

informed of the decision of the review DPC on 09.10.2019 against which he filed a representation on 17.03.2020. The same was rejected by an order

dated 05.05.2020 by the respondents. This act of the respondents, the applicant finds to be discriminatory and the order of the authority on his

representation to be non speaking and without application of mind.

The applicant’s contention is that the review DPC has failed to consider two minor punishments of censure which had been set aside by the

Appellate Authority vide order dated 30.03.2019 and still declared the applicant as ‘unfit’ for promotion. He has also stated that one other

employee, namely, Mr. Pankaj Sharma had also filed appeals in disciplinary cases which were set aside by the Appellate Authority. This was

considered by the DPC and the said Mr. Pankaj Sharma was considered for promotion whereas the applicant has been denied antedation of his

promotion by the review DPC despite the case being similar.

On behalf of respondents, counter affidavit is filed opposing the OA, listing out sequen6ce of events and various punishments imposed upon the

applicant which were considered by all subsequent DPCs from 2007 onwards. It has been stated that the review DPC is an expert body which has

considered all aspects and declare d the11 applicant as ‘unfit’ for antedation of promotion. They have also relied upon and filed judgment of

Hon’ble Delhi High Court in the matter of Jaspal Sing h Vs. Union of India and Ors. in W.P. (C) No. 5557/2019 decided on 05.11.2019.

The applicant filed a rejoinder opposing the contention of the respondents reiterating the points raised in OA. Applicant has re lied upon the

judgments of Hon’ble Delhi High Court in the m atter of UOI & Ors. Vs. S.P. Singh (W.P. (C) No. 7742/2018 decided on 02.08.20 18) and UOI

& Ors. Vs. Amiy a Kumar Jena & Anr. (W.P.(C) No. 1050/2015 decided on 27.08.2016 and the Judgment of Hon’ble Apex Court in UPSC vs.

Gyan Prakash Srivastava (2012) 1 SCC 537 decided in 30.11.2011.

We heard Mr. M. K. Bhardwaj, learned counsel for the applicant and Mr. Amit Yadav, learned counsel for the respondents through video

conferencing.

The applicant was appointed as SI in Delhi Police on 09.07.1990. His batch mates who were confirmed along with him as SI in 1992 were

considered for promotion as Inspector w.e.f. 30.11.2007 in subsequent D PCs. The applicant was not considered as during this period he was

arrested, suspended and dismissed from the force in view of a criminal case RC No. DA/1 /2006-A-0037 dated 18.09.2006 u/s 7 POC Act, AC

Branch. After his acquittal he was reinstated in service. Consequently, DPCs held in 2008, 2009, 2010, 2011 and 2012 adopted sealed cover procedure

in his case in accordance with Rule- 5-III of Delhi Police (Promotion and Confirmation) Rules, 1980. Subsequently, sealed covers were opened and he

was found as ‘unfit’ by the DPCs all these years as he could not achieve the benchmark.

At a later stage in 2013, his name was removed from the secret list and a review DPC was held on 05.12.2013. The review DPC after careful

consideration graded the applicant as ‘fit’ for promotion and inclusion of his name in the promotion list w.e.f. 24.05.2011. He was promoted in

the rank of Inspector w.e.f. 28.05.2011 vide order dated 13.12.2013. Review DPC had considered all the disciplinary cases against the applicant

including two cases in which penalty of censure was imposed on the applicant on 12.07.2000 and 25.09.2006. These punishments were set aside by

the Appellate Authority on an appeal preferred by the applicant vide order dated 30.03.2019.

In view of these developments, another review DPC was held to consider the case of the applicant yet again for antedation of his promotion. The

review DPC held on 26.09.2019 perused the entire record of the applicant, the decision taken by the Appellate Authority on two cases of censure

taken after a lapse of many years and after detailed deliberations recommended that the case of the applicant as not ‘fit’ for granting antedation

of promotion w.e.f. 30.11.2007. These recommendations were duly accepted by the competent authority and the applicant was duly advised vide

order dated 09.10.2019. The applicant preferred a representation dated 17.3. 2020 against these orders. The same was rejected by the respondents

vide order dated 05.05.2020.

It has been argued by the learned counsel for the applicant that as the applicant had been acquitted in the criminal case and punishment of censure

imposed in two cases was set aside by the Appellate Authority, the review DPC should not have declared him ‘unfit’ and granted him

antedation of promotion w.e.f. 30.11.2007. In support of his arguments he has relied upon the judgments quoted above which are primarily on the

cases pertaining to APARs an d role of DPC in considering APARs and deciding the promotions. This is not the case of the applicant herein.

It is a fact that the applicant was arrested, suspended, dismissed, put on the Secret List and was imposed a number of punishments. Applicant has,

however, stated only two Censure cases and has not mentioned other cases which were considered by earlier DPCs and listed in the counter affidavit

filed by the respondents. It may also not be out of place to mention here that the typed copy of the minutes of review DPC annexed with the illegible

copy of the minutes has incorrectly mentioned important facts like ‘unfit’ typed a s ‘fit’. Date of earlier review DPC of 05.12.2013 has

been typed as 05.12.2016 (Annexure A2 pages 21 to 24). We consider these errors as serious lapses on part of the applicant.

From the records perused by us it is evident that despite his arrest, suspension, dismissal, and a number of punishments award ed departmentally,

the respondents considered his case, adopted sealed cover as per the extant instructions. Later, the sealed covers were opened and he was found

‘unfit’ in view of not meeting the benchmark. Subsequently the review DPC considered him fit for promotion w.e.f. 24.05.2011. Not only this,

after his appeal and decision on two penalties of censure by the Appellate Authority albeit after a lapse of 13 and 19 years, the respondents gave the

applicant yet another opportunity and another review DPC was held to consider antedation of his promotion w.e.f. 30.11.2007, an issue that was

already decided by the earlier DPCs.

This brings us to the role of DPCs, its scope and limitations. As far as the role of DP C is concerned, the same has been discussed in a number of

judgments. Recent judgment of Hon’ble High Court of Delhi in the matter ofJ aspal Singh Vs. Union of India and Ors.(supra )wherein their

Lordship’s have relied upon the observations made by the Hon’ble Apex Court in UOI Vs. S.K. Goel (2007) 14 SCC 641. Reads as under;

“56. The following observations in Union of India v S.K.Goel (2007) 14 SCC 641 are also relevant in this context:

28 ...DPC is not required to be guided merely by the overall grading, if any, that may be recorded in the ACRs but to make its own

assessment on the basis of the entries in ACRs. The DPC enjoyed full discretion to devise its method and procedure for objective assessment

of suitability and merit of the candidate being considered by it Hence, the impugned order of the High Court, i n our opinion, is liable to be

set aside. ....

31 ...We hold that the DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the

candidate being considered by it. Hence, the interference by the High Court is not called for.

In the matter of grading, the discretion essentially is with the DPCs/ Selection Committees and the Court would generally not interfere.

In Ramanand Prasad Singh v Union of India (1996) 4 SCC 64, it was observed as under:

14 The Committee applies its mind to the service records and makes its own assessment of the service records of the candidates marking

them as outstanding, very good, good and so on. The Selection Committee does not necessarily adopt the same grading which is given by the

Reporting/Reviewing Officer in respect of each of the candidates. In fact, the Selection Committee makes an overall relative assessment of

the confidential report dossiers of the officers in the zone of consideration. It thus does not evaluate the confidential report dossier of an

individual in isolation. It is after this comparative assessment that the best candidates are put in the Select List ...""â€​

In the instant case, the review DPC had perused the service records of the applicant with specific emphasis on order s of Appellate Authority

dated 30.03.2019 and declared him ‘unfit’ vide order dated 09.10.2019. The representation made by the applicant was also rejected by the

respondents vide order dated 05.05.2020. Perusal of the minutes of review DPC and subsequent orders challenged by the applicant amply clarify the

issue and deliberations. The orders are detailed and speaking and do not suffer from any illegality or infirmity.

In catena of judgments, the Hon’ble Apex Court has also held that the Courts/Tribunals have limited scope of judicial revie w in DPC and

Selections. In the case of Anil Katiya Vs. UOI & Ors. (1978(1) SLR 153), the Hon’ble Apex Court has held;

“having regard to the limited scope of judicial review of the merits of a selection made for appointment to a service or a civil post, the

Tribunal has rightly proceeded on the basis that it is not expected to play the role of an appellate authority or umpire in the acts and

proceedings of the DPC and that it could not sit in judgment over the selection made by the DPC unless the selection is assailed as being

vitiated by malafides or on the ground of its being arbitrary.â€​

DOP&T Circular dated 10.04.1989 also provided guidelines indicating that each D PCs should devise its own meth od and procedures for the

objective of the suitability of the candidate.

The applicant’s case has been considered repeatedly by regular DPCs and he was not found ‘fit’ for antedation of promotion. Twice his

case has been considered by review DPC. In the first review DPC, which too k place on 05.12.2013, he was considered and he was granted

promotion accordingly w.e.f. 28.05.2011. The review DPC of 05 .12.2013 did not find him ‘fit’ for antedation of promotion w.e.f. 30.11.2007.

The review DPC held on 26.09.2019 also consider ed his case for antedation of promotion w.e.f. 30.11.2007 and did not find him ‘fit’ for the

same. The arguments that in another DPC and related to that of the applicant, one Mr. Pankaj Sharma was considered for promotion is irrelevant and

not tenable as both cases are different from each other substantially and decided by two separate DPC and review DPC.

We do not find any infirmity or illegality in the orders passed by the review DPC and also in the orders passed in the subsequent representations

made by the applicant. In view of the above the present OA is devoid of merit and the same is, accordingly, dismissed. There shall be no order as to

costs.