W.P.(C)/8888/2009 of AJAY PAL SINGH Vs LT. GOVERNOR & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 01.10.2014Pronounced on: 11.11.2014

+W.P.(C) 8888/2009AJAY PAL SINGH

..... Petitioner

Through: Sh. Arun Bhardwaj, Advocate.

Versus

LT. GOVERNOR AND ORS...... RespondentsThrough: Ms. Zubeda Begum, Advocate.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT%

1.The petitioner, in these proceedings under Article 226 ofthe Constitution of India questions orders dated 19.03.2009 and02.09.2006 of the Central Administrative Tribunal (hereafter “theCAT”),inR.A.No.130/2007andO.A.No.144/2005respectively which denied ad-hoc out of turn promotion to him.The CAT reasoned that promotion is not matter of right and thatthe competent authority rejected the petitioner’s request upon dueconsideration.

2.The relevant facts of this case are that the petitioner joinedthe Delhi Police as Sub-Inspector (Exe) in 1985 in the sportsquota. From the time of his appointment, he participated invarious sports events. He won the gold medal in the hammerthrow event at the Second National Games held in Trivandrum on27.12.1987, thereby creating new National Games record. In1990, the petitioner participated as an athlete in the International

Athletic Permit Meet. He also won the bronze medal in theNational Meet in 1990. In 1989-1990, the petitioner applied forout of turn promotion to the rank of Inspector (Exe) on the basisof Standing Order (SO) No. 4 which is in respect of Recruitmentand Further Promotion of Sportsmen in Delhi Police. Accordingto this S.O., Sub-Inspector (Exe) is eligible for promotion to therank of Inspector if he wins gold medal in the National Games.

3.The Petitioner's case was considered and assessed by theDeputy Commissioner of Police (Sports) on merits. The requestwas rejected on the technical grounds that though the petitionerhad secured gold medal in the 1987 National Games, S.O. No. 4came into existence with effect from 08.12.1989 and did not haveretrospective effect. The second request made by the petitionerwas also declined on 27.12.1990. He then appealed to thecompetent authority to reconsider his case on the basis of therelevant rules governing the issue prior to the S.O., namely theDelhi Police (Promotion and Confirmation) Rules which cameinto existence with effect from 29.12.1980. Rule 19 specificallyaddressed the granting of ad-hoc or out of turn promotions tosportsmen. Accordingly the case was considered and assessed atdifferent levels of the department continuously for more than 12years but did not yield any outcome. In the meantime, DCPSports by memo dated 17.04.2000 categorically stated that thepetitioner was fit for out of turn promotion as an outstandingsportsman under Rule 19(ii) of the Delhi Police (Promotion andConfirmation) Rules, 1980. The Screening Committee of DelhiPolice considered and recommended the case of the petitioner for

out of turn promotion under Sports Quota on 05.12.2000. TheCommissioner of Delhi Police recommended and forwarded thecase of the petitioner to the Government of NCT of Delhi for theapproval of the LG/Administrator. Nevertheless, after the matterremained pending with the respondent for more than 12 years, thepetitioner's case was rejected by order dated 03.10.2002 withoutany reason being assigned whatsoever.

4.The petitioner accordingly filed O.A. No. 2757/2002. TheCAT, by order dated 20.02.2003 allowed the application anddirected the first respondent to consider the case of the petitionerunder Rule 19(ii) of the 1980 Rules. The petitioner represented tothe first respondent for execution of the order of the CAT. In theinterregnum, on 16.07.2003 he was promoted to the rank ofInspector. On 28.08.2003, he again urged for out of turnpromotionaccordingtothedirectionsoftheCAT.Hesubsequently filed contempt proceedings (CP 18/2004) before theCAT against the respondents. Since the contempt petition hadbeen filed, the first respondent was requested to grant out of turnpromotion to the petitioner w.e.f. 1988. The first respondentaddressed communication to the Joint Commissioner of Policeon 08.04.2004 stating that after due consideration the petitionerwas not fit for the promotion because he did not have“conspicuous achievements” and his performance was “not ofsuch exceptional order”, therefore rendering him undeserving ofpromotion under Rule 19(ii) of the 1980 Rules. The firstrespondent also stated that the petitioner had, in any case, beenpromoted to the rank of Inspector.

5.The CAT, by order dated 22.04.2004, set aside the freshgrounds of rejection and directed the respondents to implementthe order of the CAT dated 20.02.2003 within month. Therespondents herein filed W.P. No. 8444/04. This Court, by itsorder dated 07.12.2004, allowed the writ petition on the groundthat the CAT had exceeded its contempt jurisdiction and that therejectionbytherespondents,uponconsiderationofthepetitioner’scase,gaverisetoafreshcauseofaction,necessitating the petitioner to file fresh O.A. before the CAT.Therefore, the Court declared the CAT’s order in the contemptproceedings unsustainable but left it open to the petitioner topursue any remedy available to him in law.

6.The petitioner herein then preferred O.A. No. 144/2005against the order dated 08.04.2004. The CAT, by the impugnedorder dated 02.09.2006, dismissed the O.A. The CAT alsodismissed the review petition, R.A. No. 130/07 filed by thepetitioner.

7.The petitioner is aggrieved by the impugned order in the

O.A. which, in relevant part, is as follows:

“10. The representation of the respondents have beenturned down because he was appointed against sportsquota in 1985 and thereafter he was awarded GoldMedal barely 3 years after joining the Police Force in1987. Thereafter he did not have any other outstandingperformance in the sports. As such there was noconsistency in his performance in the sports afterjoining the Police Force. It is submitted that Committeeconstituted for promotion of applicant for ad hoc out ofturn promotion had once recommended the case of the

applicant but the Administrator, the Lt. Governor ofDelhi, had not accepted this recommendation. Sincethe applicant has only right of consideration and theGovernment had already considered him for out of turnpromotion for his achievement in the year 1987 and1990, we do not find that the Tribunal may direct therespondent to promote him also.”

12. The promotions to the higher post or rank are tocome into effect from the date of promotion. TheGovernment,however,inordertoalleviatethehardship of person who has been denied promotionbecause of inordinate delay in holding all the DPC etc.may make it retrospective. There is no allegation ofmalafideagainstanyoftheauthoritiesoftherespondent. It can also not been stated here that therewas delay in holding the DPC or Screening Committee.The representation of the applicant has been dulyconsidered.It is only the last Screening Committeewhich has made recommendation but the competentauthority has refused to accept this recommendation.We do not find that the decision warranted anyinterference by this Tribunal as the applicant did nothaveanyrightofpromotionespeciallyfromretrospective date on ad hoc or otherwise.”

13.Furthermore, we are told that the applicant hasalready been promoted to the rank of Inspector. TheOA,therefore,hasbecomeinfructuousasthepromotion of the applicant under Rule 19, if any, hadto take effect from the date of promotion.”

(emphasis supplied)

8.The petitioner argues that he was discriminated against bybeing denied ad-hoc out of turn promotion. He claims that hefulfils all requirements under Rule 19(ii) of the Delhi Police(Promotion and Confirmation) Rules, 1980. Under S.O. No. 4,the only criterion stipulated in respect of Sub-Inspectors iswinning gold medal in the National Games, feat achieved bythe petitioner in the 1987 National Games. Accordingly, he is fittoqualifyasan“outstandingsportsman”.However,therespondents, with mala fide intention, rejected his request onthe basis of extraneous and irrelevant considerations, despiteobliging other similarly placed sportsmen under the same Rule.Therespondentsinordinately delayed itsdecisiononthepetitioner’s request only to deny him the promotion on unjustifiedgrounds.9.The respondents argue that in pursuance of the CAT’sorder dated 20.02.2003, the case of the petitioner was considered.The outcome of such consideration was that he was notconsidered fit to be promoted because his performance was notcontinuous and not of an exceptional order so as to merit apromotion within 3-4 years of his initial appointment. In anycase, the petitioner was promoted to the rank of Inspector in theinterregnum on 16.07.2003, rendering his request infructuous.10.The issue which requires resolution is whether thepetitioner was unfairly treated and discriminated against by thedenial of the ad-hoc out of turn promotion by the respondents.11.Rule19(ii)oftheDelhiPolice(PromotionandConfirmation) Rules, 1980 reads as follows:

“To encourage outstanding sportsmen, marks men,officers who have shown exceptional gallentry anddevotion to duty, the Commissioner of Police may, withprior permission ofAdministrator, promote suchofficers to the next higher rank provided vacanciesexist. Such promotions, shall exceed, 5 percent of thevacancies likely to fall vacant in the given year not inthe rank. Such promotion shall be treated as ad-hocand will be regularised when the persons so promotedhavesuccessfullycompletedthetrainingcourseprescribed like (Lower School Training), if any. Forpurpose of seniority such promotes shall be placed atthe bottom of promotion list drawn up for that year.”(emphasis supplied)

12.The relevant part of S.O. No. 4 is as follows:

“5. PROMOTION

AdhocpromotiontosportsmenasoutstandingperformancewillbeconsideredbyaScreeningCommitteeconsisting of one Addl. Commissioner ofPolice, and 2 DCsP to be nominated by Commissionerof Police, Delhi. Following will be the criteria forperformance for consideration:-performancewillbeconsideredbyaScreeningCommitteeconsisting of one Addl. Commissioner ofPolice, and 2 DCsP to be nominated by Commissionerof Police, Delhi. Following will be the criteria forperformance for consideration:-

(a)INDIVIDUAL PERFORMANCE

(i) INSPECTOR

(1)He qualifies for the final round in Olympics OR(2)He wins Medal in the Common Wealth/AsianGames. OR(2)He wins Medal in the Common Wealth/AsianGames. OR

(3)He wins Gold Medal in the National Games OR(4)He wins three Gold Medals in All India PoliceGames.(4)He wins three Gold Medals in All India PoliceGames.

(emphasis supplied)

13.The Deputy Commissioner of Police, by memo dated17.04.2000, affirmed that the case of the petitioner was fit for out

of turn promotion. Noting his various achievements, the DCPacknowledged that the petitioner secured the gold medal in the1987 National Games, secured position in National Meets twicein 1989 and once in 1990, and secured medals in 1987 and 1988at the All India Police Games. These achievements are “sufficientto grade him as an outstanding sportsman.” The DCP alsoagreed with the petitioner that his case was governed by the 1980Rules and not S.O. No. 4. The relevant part of the DCP’sstatement is as follows:

“The SI has submitted his request for reconsiderationof his case. I have carefully read the facts and groundsadvanced by him in it. I am now of considered opinionthat SI Ajay Pal Singh’s case is fully covered by therequirement of an outstanding sportsmen (Delhi PolicePromotion and Confirmation Rule 1980) and SO No.-4also.I also do not find any anomaly in his contents thatthe fundamental rules to govern out of turn promotionsisrule19(ii)ofDelhiPolicePromotionandConfirmation Rules 1980 and not SO.-4. Examples ofpreviously and subsequently out of turn promotesportsmen, since the issuance of SO No.-4 substantiallyprovide support to his claim. Therefore recommendthat case of SI Ajay Pal Singh is fit for out of turnpromotion as an outstanding sportsman under Rule19(ii) of Delhi Police (Promotion and Confirmation)Rules, 1980.”

(emphasis supplied)

Analysis and Conclusions

14.The Delhi Police (Promotion and Confirmation) Rules,1980 authorize grant of ad-hoc promotions to “outstandingsportsmen”. The Rule, however, does not stipulate criteria orparameters to facilitate the determination of “outstanding”. S.O.

No. 4 prescribes securing two gold medals in the All India PoliceGames or one gold medal in the National Games as the criteria toidentify “outstanding sportsmen” in the category of Sub-Inspectors who are in turn entitled to promotion to the rank ofInspector. The point that needs to be highlighted is that it is theRules and not the S.O. which provides for the ad-hoc promotionof outstanding sportsmen. Therefore, there is no substance in thecontention that since the petitioner won the gold medal in 1987,the S.O. cannot be applied retrospectively given it assumed effectfrom 1989. There is no question of applying the said orderretrospectively. In this respect, attention must be drawn to theorder of the CAT dated 20.02.2003, the relevant part of which isas follows:

“8. Our attention has been drawn to Standing Order 4issued by the Commissioner of Police dated 8.12.89 tocontend that the applicant had down the Gold Medalbefore the said standing order and the standing orderwould only be prospective in nature. Even if it be so,keeping in view Rule 19(ii) of the Rules, referred toabove, the applicant had right to be considered forpromotion in the outstanding sportsmen quota ascontemplated under the said rules. Therefore, the claimof the applicant cannot be said to be rejected simply onthe ground.

9. Resultantly, we quash the impugned order and it isdirected that the claim of the Applicant should beconsidered for further promotion in the outstandingsportsmen quota in pursuance of Rule 19(ii) referred toabove. Consequential benefits, if any, will also beaccorded to him.”

(emphasis supplied)

In fact, the respondents have admitted the same in theirreply affidavit to O.A. No. 2757/2002 wherein they havesubmitted that while the Screening Committee on 05.12.2000noticed that the applicant’s claim was first rejected on technicalgrounds and not considered under Rule 19(ii), the next ScreeningCommittee recommended his promotion on the basis of Rule19(ii) and of fulfilling the eligibility criteria stipulated by the S.O.Therefore, the Petitioner is eligible for promotion under Rule19(ii) in the outstanding sportsmen quota. S.O. No. 4 only servesto qualify “outstanding” as used in Rule 19(ii) by stipulatingcriteria which the petitioner concededly satisfied i.e. winning agold medal in the National Games. In any case, the petitionerrequestedforad-hocpromotionin1989-1990whichissubsequent to the coming in effect of S.O. No. 4. The S.O. doesnot prescribe any time period beyond which applications for ad-hoc promotions will not be considered. It will apply to anyapplication submitted after 1989 regardless of whether thesportingachievement/swhichanapplicantdrawsontocharacterise him/herself as “outstanding”, took place prior to orafter 1989.15.The order of the CAT dated 20.02.2003 was not appealedagainst by the respondents. To secure its compliance, thepetitioner filed contempt petition before the CAT. During thependency of the contempt proceedings, the respondents gaveentirely new reasons to decline the petitioner's request, namely,that after the 1987 National Games, the petitioner did not have

any “conspicuous achievement” and that his performance wasnot of an “exceptional order” as to warrant ad-hoc promotionwithin 3-4 years of his initial appointment as Sub-Inspector. Thisis irrational, arbitrary and discriminatory. Firstly, such decisionshould have been within the parameters of the 1980 Rules andS.O. No. 4, neither of which admit of any scope or basis for suchnew reasons. This was held by the CAT in its order dated22.04.2004, in the following terms:

“7. The ground taken by the respondents for rejectionof applicant’s claim is not provided in the provisionsunder rule 19(ii) ibid. Applicant had secured goldmedal in National Games in 1987and he was held to bean outstanding sportsman under these provisions inTribunal’s order dated 20.02.2003. Respondents weremerely to consider applicant’s claim in pursuance ofrule 19(2) ibid subject to availability of 5% vacanciesunder the sports quota. Respondents have wilfully anddeliberately resorted to an entirely new ground of lackof continued outstanding performancefor denial ofpromotion as Inspector to the Applicant at the relevanttime. The provisions of rule 19(ii) do not contemplateany such restriction or condition.”of applicant’s claim is not provided in the provisionsunder rule 19(ii) ibid. Applicant had secured goldmedal in National Games in 1987and he was held to bean outstanding sportsman under these provisions inTribunal’s order dated 20.02.2003. Respondents weremerely to consider applicant’s claim in pursuance ofrule 19(2) ibid subject to availability of 5% vacanciesunder the sports quota. Respondents have wilfully anddeliberately resorted to an entirely new ground of lackof continued outstanding performancefor denial ofpromotion as Inspector to the Applicant at the relevanttime. The provisions of rule 19(ii) do not contemplateany such restriction or condition.”

(emphasis supplied)

Thus, these new reasons are extraneous and can only bedescribed as an afterthought stated in the respondents' attempt todeny the legitimate request of the petitioner. Secondly, even if itbe so, it is plain that the petitioner consistently performed welland secured significant achievements even after the 1987National Games, such as winning medals in 1987 and 1988 in theAll India Police Games as well as securing positions in NationalMeets twice in 1989 and once in 1990. These were expressly

noted by the DCP in his memo dated 17.04.2000, by theScreening Committee in its minutes dated 05.12.2000, and by therespondentsintheirreplytotheO.A.No.2757/2002.Furthermore, once the competent authorities referred to in Rule19(ii) and Clause 5 of S.O. No. 4 gave the green signal inunequivocal terms, there was no compelling reason for the firstrespondent to sit over the matter for more than 12 years and toreject the petitioner's case. Thirdly, such action is clearlydiscriminatory to the petitioner as other applicants were grantedad-hoc promotions under Rule 19(ii) on the basis of outstandingachievementsinsportswithin3-4yearsoftheirinitialappointment. Consequently, such view is clearly unjustified; itsuffers from non-application of mind.16.This Court is in agreement with the CAT’s finding that anemployee only enjoys right of consideration and cannot claimpromotion as matter of right. The decision of his promotioncomes within the domain of the competent authority who,however, is under an obligation to accord due consideration.Ordinarily, therefore, an argument to this effect would prevail.Nonetheless, when this is to be tested against constitutionalvalue such as the guarantee of equality and protection againstdiscrimination, the principle which the Courts hold fast to is thatany apparent classification needs to be justified. It is integral thatany such decision needs to be fair, justified and reasoned so as tonot be rendered capricious, arbitrary and unfair. This imperativeensures the right to equality under Article 14 of the Constitution.17.In the present case, despite categorical and reasonedrecommendation from the DCP as well as clearance from theScreening Committee, the first respondent dismissed the requestof the petitioner with mere “it is felt that it is not possible toconsider the case at this stage.” Such response is devoid of anyrationale or logic whatsoever and reflects complete non-application of mind and absence of due consideration. Notably,the respondents did not appeal the order of the CAT dated20.02.2003 but instead gave new- and utterly irrelevant-explanation to justify the rejection of the petitioner’s case.Neither the 1980 Rules nor S.O. No. 4 stipulate any requirementof continuity or consistency directly or impliedly. Even so, if thisbe the demand of the respondents, the petitioner fulfils this factortoo, satisfactorily as is evident from his performance in sportingevents up to and in 1990, and as was even appreciated by theDCP and Screening Committee. Similarly, the reason that thepetitioner could not be promoted within 3-4 years of his initialappointment, since his performance was not of an “exceptionalorder” is unsustainable, and is simply another figment of theimagination of the respondents.

18.The CAT in its order dated 02.09.2006 has extracted theSupreme Court’s ruling in Shankarsan Dash v. Union of India(1999 2 SCR 567) to say that mere inclusion of one’s name in thelist does not confer the right of appointment. However, in thesame extract, the Supreme Court has held - “But the authoritymust act reasonably, fairly and in public interest and omissionthereof should not be arbitrary”. In the present case, there is no

doubt that the respondents did not approach the issue objectively.Other sportsmen who were granted the benefit of Rule 19(ii) werealso promoted within 3-4 years of their initial appointment,having similar achievements to the petitioner. Therefore, thesesportsmen and the petitioner can be said to be similarly placedwithin the mandate of Art. 14. All this clearly makes out case ofhostile discrimination against the petitioner, violating the basictenet of Art. 14.

19.Given all this, the interregnum promotion of the petitionerto the rank of Inspector cannot deprive the petitioner of thepromotion to which he is rightly entitled and the consequentialbenefits of such promotion. This was also appreciated by theCAT in its order dated 22.04.2004.

20.As result, it is held that the respondents acted in adiscriminatory manner in denying the request of the petitioner forad-hoc promotion. The impugned orders of the CAT areaccordingly set aside. direction is issued to the respondents toensure that the petitioner is granted promotion from the date onwhich he is eligible along with full consequential benefits.21.The writ petition is allowed in the above terms without anyorder as to costs.

S. RAVINDRA BHAT(JUDGE)

NOVEMBER 11, 2014

VIPIN SANGHI(JUDGE)