Umesh Barthwal vs GNCT of Delhi and Others

Pradeep Nandrajog, J.—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. On September 21, 1999 the Commissioner of Police had issued an order constituting a committee to examine cases for out of turn promotion.

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.

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.

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:-

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

Details of Police Officials Who Were Granted Out of Turn Promotion During The Year-2007

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.

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.

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.

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.

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.

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.

But instant writ petitions can always be treated as a substantive proceeding.

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.

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.

Compliance be made within 12 weeks from today. No costs.