Vinod Kumar vs Commissioner Of Police

Ashish Kalia, J

The present OA is filed by the applicant seeking following reliefs:-

"(i) To quash and set aside the impugned order No. 38817-37/CB-I/PHQ dated 13.07.2018 (Annexure A-1) and Order dated 19.11.2018 (Annexure A-2) and direct the respondents to restore the promotion of applicant as Inspector (Executive) with all consequential benefits including seniority pay etc. w.e.f. 18.05.2017.

(ii) To declare the action of respondents in reverting the applicant with retrospective effect and resorting to deemed sealed cover as illegal and direct the respondents to restore the applicant's promotion as Inspector (Executive) with all consequential benefits.

(iii) To allow the OA with cost.

(iv) To pass such other and futher orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case."

The brief facts of the case are:-

(i) The applicant initially joined as sub-Inspector with Delhi Police in the year of 1989 in ST category. After rendering requisite years of service, the applicant became eligible for consideration for promotion to the post of Inspector (Executive) as per Rule 17(i) of Delhi Police (Promotion & Confirmation) Rules, 1980 along with other persons.

(ii) Thereafter, the applicant was promoted to the post of Inspector (Executive) on 02.06.2017 vide Annexure A-3.

(iii) Of all sudden, vide Order dated 13.07.2018, the respondents have reverted the applicant to the lower post of Sub-Inspector (Executive) by cancelling his promotion and kept the recommendations on the basis of which the applicant was promoted in sealed cover w.e.f. 18.05.2017 on the ground that on the date of DPC, the applicant was facing FIR No. 1266/2015 dated 17.10.2015 u/s 448/506, PS Sarai Rohilla (Annexure A-1).

(iv) The applicant further submitted that mere registration of FIR cannot be the ground to deny promotion for taking resort to sealed cover as evident from DOP&T OM dated 14.09.1992, by which three conditions were laid down:-

"2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee.

i) Government servants under suspension

ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and

iii) Government servants in respect of whom prosecution for criminal charge is pending."

Feeling aggrieved by the afore-mentioned arbitrary and discriminatory action of the respondents, the applicant submitted the detailed representation on 21.07.2018. To the said representation the correct, factual and legal positions requesting to withdraw the reversion order and the same was rejected vide Annexure A-2 dated 19.11.2018.

Due to non-action of the said representation, the applicant has approached the Tribunal for redressal of his grievance. The applicant has raised following grounds in the OA:-

(i) DOP&T OM/Instructions has been misinterpreted by the respondents.

(ii) Mere FIR could not have been the ground for cancelling of application order as the promotion was not erroneous, non-violating to recruitment rules, etc.

The applicant has relied upon judgement i.e.,

Inderpal Yadav Vs. UOI (1985) 2 SLR 248, Ketty Veerappa & Ors. Vs. State of Karnataka & Ors. (2006) 9 SCC 406, P.K. & Ors. V. K. Kapoor & Anr. JT 2007 (12) 439 and Gulam Rasul Lone Vs. State of J&K (2009) 15 SCC 321. He also relied upon the judgements held by Hon'ble Supreme Court i.e., State of Bengal Vs. Rabindra Nath Sengupta, 1998 (2) SLR (No.) 535, Marine Products Export Development Authority Vs. A. Geetha, 1997 (6) SLR No. 331 and Union of India Vs. Anil Kumar, 1999 (4) SLR (No.) 298.

The applicant submitted that respondents have no authority to take away the applicant's promotion by resorting to sealed cover procedure retrospectively merely on registration of FIR apart from other grounds.

Notices were issued to the respondents. They have filed detailed reply. Learned counsel Sh. Anuj Kumar Sharma submitted at the bar that the applicant has suppressed the information from the Department in regards to the registration of FIR against him. Despite having knowledge that the FIR is registered against him on 21.08.2016 with assert to PS Sarai Rohilla and subsequently files were to be put before the Magistrate Sh. Sachin Sangwan, MM Tis Hazari Court, Delhi.

In this matter, the I.O. filed a status on 27.01.2017 stating that SI Vinod Kumar Meena, No. D-2769 is accused in afore-mentioned FIR.

He has drawn attention on draft chargesheet has been filed on 20.09.2018:-

"xxx xxx xxx

However, the above criminal case was not reported by DCP/Security while sending the service particulars of SI (Exe.) Vinod Kumar, No. D-2769 and thus was not reported to DPC for admission of his name to Promotion List- (Exe.) w.e.f. 18.05.2017. Had the DPC been informed about pendency of criminal case against SI (Exe.) Vinod Kumar, No. D-2769, the sealed cover procedure would have been adopted since the Applicant was not clear from vigilance angle on the day of DPC. Therefore, the promotion of SI (Exe.) Vinod Kumar, No. D-2769 to the rank of Inspector (Exe.) ordered vide notification dated 2.6.2017 was erroneous since he was not clear from vigilance angle on that day and the material fact of criminal case pending against him could not be brought in to the notice of DPC.

xxx xxx xxx

Cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion. The orders refixing the pay should be issued expressly under FR 31-A, and a copy thereof should be endorsed to the Ministry of Finance (Department of Expenditure).

xxx xxx xxx

The above rules also provide suitable disciplinary action against the staff responsible for such erroneous promotion. The concerned disciplinary authorities were also requested to fix the responsibility and take necessary disciplinary action against the erring officers. Vigilance Branch has also been requested to conduct a vigilance enquiry to fix the responsibility of the concerned staff. Accordingly, a Vigilance enquiry has been conducted by Vigilance Branch. A copy of vigilance enquiry report recommending therein the action against the erring officers is enclosed at Annexure- R-1.

xxx xxx xxx"

Thus, counsel for respondent has submitted that the applicant was erroneously promoted and the action was initiated by the Department under FR 31A against the applicant for cancelling his erroneous promotion. Thereafter, he has also drawn my attention that those officials, who were involved in concealing information in regards to the registration of FIR alongwith applicant was also dealt with departmentally by issuing a show cause notice.

Counsel for respondent has also relied upon the judgement of Hon'ble Supreme Court of India delivered in the matter of Union of India vs. K.V. Janakiraman case.

Heard counsel for applicant and respondent at length and perused the records.

Issue raised before this Tribunal by the applicant, herein, is that on the date of DPC, i.e., 18.05.2017, there was no charge sheet against him or charge memo in the case of departmental proceeding. Thus, can he be reverted on account of subsequent issuance of charge in criminal case?

Counsel for applicant relied upon the judgement of this Tribunal in OA 1049/2014 & OA 1015/2015 pronounced on 02.11.2015, wherein similarly situated person Sub-Inspector (Executive) subjecting to almost similar circumstances and this Tribunal has at length discussed various judgements of Hon'ble Apex Court as well as the Hon'ble High Court namely, Union of India vs. K.V. Janakiraman, AIR 1991 SC 2010, Union of India and others vs. Sangram Keshari Nayak, (2007) 6 SCC 704; Union of India vs. Om Prakash in Writ Petition (Civil) No. 7180/2008 decided on 27.11.2008, Union of India vs. Inspector Jawahar Lal & Ors. decided on 2.12.2011 and R.S. Srivastava vs. Managing Director and Acting Chairman, GIC, 1999 (5) SLR 714 by Hon'ble High Court.

After appreciating these case laws, this Tribunal is of the opinion that the OA deserves to be allowed. In case of the applicant, sealed cover proceeding could be resorted only when charge sheet in criminal case would have been pending prior to the date of DPC proceeding, which is not the case here. In DPC proceeding, records of previous five years are to be taken into account not the subsequent misconduct, if any. The applicant was rightly promoted to the post of Inspector after considering the relevant records of previous years. This is the law governing the promotion through DPC.

That appreciating the legal position with the above said cases. One thing is clear that for resorting the sealed cover procedure, there are three conditions laid down by the Government of India OM dated 14.09.1992 that government servants should be under suspension or charge sheet has been issued in disciplinary proceeding or in respect of Government servant of whom prosecution of criminal charges pending. All the three conditions have not been absent in the case of the applicant, herein. The charge sheet, in fact, has been filed against him on 20.09.2018 whereas the DPC took place on 18.05.2017, meaning thereby the DPC should take into consideration the records of the applicant prior to 5 year period in which there is no such suspension or the registration of charge was there. Then concealment of such information he could have been dealt with departmentally often giving him due opportunity to defend himself. But reverting the applicant with retrospectively by terming it erroneous promotion is not permissible under the law.

This Tribunal is of the view there is a merit on the side of the applicant. Hence, this OA is allowed. We, hereby, set aside Annexure A1 and Annexure A2 and direct the respondents to restore back the promotion of the applicant, herein, to the post of Inspector (Executive) with retrospective effect with all consequential benefits including seniority & financial benefit, etc. This Order shall be complied within 90 days from the date of receipt of copy of this order. However, Department is not precluded from taking any action against the applicant on account of suppression of information of Registration of FIR from the Department in accordance with law.

With this observation, OA is disposed of. No order as to costs.