Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : 15^'^November,2010 Judgment Pronounced on: 10^" December, 2010 + W.P.(C) 5444/2010 GOVT OF DELHI & ORS Petitioners Through: Ms.AvnishAhlawat, Advocate with Ms.Latika Chaudhary, Ms.Simran and Mr.Nitesh Kumar Singh, Advocates versus HC RAJ KUIVIAR ..... Respondent Through: Mr.Sourabh Ahuja, Advocate W.P.(C) 5446/2010 GOVT OF DELHI & ORS Petitioners Through: Ms.Avnish Ahlawat, Advocate with Ms.Latika Chaudhary, Ms.Simran and Mr.Nitesh Kumar Singh, Advocates versus HC KULDEEP SINGH .....Respondent Through: Mr.Sourabh Ahuja, Advocate W.P.(C) 5458/2010 ^ GOVT OF DELHI & ORS Petitioners Through: Ms.Avnish Ahlawat, Advocate with Ms.Latika Chaudhary, Ms.Simran and Mr.Nitesh Kumar Singh, Advocates versus HC MANOJ KUMAR Respondent Through: Mr.Sourabh Ahuja, Advocate W.P.(C) 5465/2010 GOVT OF DELHI & ORS Petitioners Through: Ms.Avnish Ahlawat, Advocate with Ms.Latika Chaudhary, Ms.Simran and Mr.Nitesh Kumar Singh, Advocates W.P.(C) No.5444/2010 &Conn.Matters Page1 of 50 versus HC RAKESH KOTHIYAL Respondent Through: Mr.Sourabh Ahuja, Advocate W.P.fC) 5482/2010 GOVT OF DELHI & ORS Petitioners Through: Ms.Avnish Ahlawat, Advocate with Ms.Latika Chaudhary, Ms.Simran and Ivir.Nitesh Kunnar Singh, Advocates versus SI UMESH BARTHWAL Respondent Through: Ivir.Sourabh Ahuja, Advocate W.P.(C) 5528/2010 GOVT OF DELHI & ORS ..... Petitioners Through: Ms.Avnish Ahlawat, Advocate with Ms.Latika Chaudhary, Ms.Simran and Mr.Nitesh Kumar Singh, Advocates versus HC MANOJ KUMAR Respondent Through: Mr.Sourabh Ahuja, Advocate W.P.fC) 5549/2010 GOVT OF DELHI & ORS Petitioners Through: Ms.Avnish Ahlawat, Advocate with Ms.Latika Chaudhary, Ms.Simran and Mr.Nitesh Kumar Singh, Advocates versus HC SANJEEVSHOKEEN Respondent Through: Mr.Sourabh Ahuja, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed W.P.(C)No.5444/2010 &Conn.Matters Page2 of 50 •v^ to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. 1. Since common question arises for consideration in the above captioned writ petitions arguments were heard in all the matters on 15.11.2010 and decision was reserved. The present judgment decides all the writ petitions. 2. Shorn of unnecessary details, the relevant facts are that i Section 147 of the Delhi Police Act 1948 empowers the Administrator of Delhi to make rules for recruitment to, and the pay, allowances and other conditions of service of members of Delhi Police. In exercise of the power conferred upon it by Section 147 of Delhi Police Act, 1948 the Administrator framed Delhi Police (Promotion and Confirmation) Rules, 1980 (hereinafter referred to as the "Rules"). 3. Rule 5 of the Rules provides that promotions from one rank to another and from lower grade to higher grade in the same rank shall be made by selection tempered with seniority; and efficiency and honesty shall be the main factors governing the selection and that the zone of consideration shall be determined in accordance with the rules and instructions issued by the government from time to time. Rule 19 makes provision for out of turn promotion and the same reads as under:- "19. Ad-hoc promotions - (i) In special circumstances when there are no approved names on promotion lists, and vacancies exist, the Commissioner of Police, may promote suitable officers in orders of seniority to next higher rank temporarily. Such promotions shall not entitle the officer concerned to claim and right for regular appointment or seniority or for appointment to such or any other equivalent W.P.(C)No.5444/2010&Conn.Matters Page 3 of50 post and shall be liable to reversion without notice as soon as qualified men become available. (ii) To encourage outstanding sportsmen, marksmen, officers who have shown exceptional gallantry and devotion to duty, the Commissioner of Police may, with the prior approval of the Administrator, promote such officers to the next higher rank provided vacancies exist. Such promotions shall not exceed 5 per cent of the vacancies likely to fall vacant in the given year in the rank. Such promotions shall be treated as ad-hoc and will be regularized when the persons so promoted have successfully completed the training course prescribed like (Lower School Course), if any. For the purpose of -X seniority such promotees shall be placed at the bottom of the promotion list drawn up for that year. (iii) The Commissioner of Police, Delhi for the purpose of posting to the Police Training School and the Recruits Training Centre (DAV IVth Bn. at present) personnel of appropriate merit and talent may grant one rank promotion as incentive purely on emergent basis up to the level of Inspector without conferring on the promotee, any right of seniority and appointment whatsoever even if he may be borne on promotion. Such promotees shall revert to their substantive rank as soon as they are transferred out of training institutes and ceased to be an Inspector." 4. On 21.09.1999 the Commissioner of Police issued an Office Order regarding the grant of out of turn promotion to the police officers in terms of Rule 19 of the Rules, which reads as under:- "Henceforth all cases of out of turn promotions when received in PHQ will be first examined by the Committee consisted of the following: 1. Shri R.S. Gupta, Spl. CP/Ops. : Chairman 2. Shri R.P. Singh, Jt. CP/Vig. : Member 3. Shri Kanwaljit Deol, Addl. CP/Traffic : Member 4. Shri S. Dash, DCP/SO to CP : Member W.P.(C) No.5444/2010 & Conn.Matters Page 4 of 50 The Committee will examine whether the act for which out of turn promotion is recommended involves threat or risk to life of a police personnel concerned. If the act does not concern any bravery or gallantry, it should be examined whether the achievement in question was result of efforts by the individual which may be termed as beyond the call of duty. Another category can be of a person who has been performing consistently outstandingly for quite sometime and deserves encouragement for his extreme hard work and outstanding performance and devotion to duty. The Committee must ensure that under no circumstances should a police personnel be recommended for out of turn promotion in a routine type of work or for a performance which cannot be categorized as outstanding. The Committee will make minutes of meeting in which such cases are considered. The Committee will come to a conclusion which should be conveyed to me and the minutes signed by the Chairman as well as Members of the Committee. Thereafter the recommendations will put up for final approval of the undersigned." 5. Save and except respondent Umesh Barthwal in W.P.(C) No.5482/10 who is working as Sub-Inspector in Delhi Police the respondents in all the other petitions are working as Head Constable in Delhi Police. 6. On 2.8.2005 HC Raj Kumar the respondent in W.P.(C) No.5444/10 and two other police officers, namely Const.Mohan Chander and SI Ved Prakash had tracked a dreaded inter-state gangster named Janamjay @ Moni and for which they had to spend lot of time, pool in their resources and intelligence and finally to have a face to face encounter with the gangster. On 11.6.2004 HC Kuldeep Singh the respondent in W.P.{C) No.5446/2010 and 3 other police officers, namely Const.Dev Dutt, ASI Rishi Pal and ASI Devender had likewise worked and came face to face in an encounter with another inter-state gangster and his associate i.e. Yaseen and Benani Singh. On W.P.(C) No.5444/2010 &Conn.Matters Page5 of 50 X -V \y 10.5.2005 HC Manoj Kumar the respondent in W.P.(C) No.5458/2010 and another police officer HC Dharamvir had likewise worked out and came face to face in an encounter with another dreaded gangster named Ranbir Rathi. On 27.4.2007 HC Rakesh Kothiyal the respondent in W.P.(C) No.5465/2010 and another police officer named Const.Rajender Singh had likewise worked out and came face to face in an encounter with another inter-state gangster named Sandeep Deswal @ Narsimha. On 6.3.2006 SI Umesh Barthwal the respondent in W.P.(C) No.5482/2010 and 4 police officers named HC Surender Kumar, I HC Yashpal, Const.SunderLai Gautam and Const.SunilKasana ! had likewiseworked out and came face to face in an encounter I with another dreaded inter-state gangster named Hemant @ Sonu and his associate Jaswant @ Sonu. On 16.1.2006 HC Manoj Kumar the respondent in W.P.(C) No.5528/2010 and 4 police officers named SI Ramesh Chander, ASI Rajender Singh, Const.Bachchu Singh and Const.Mohd.lqbal had likewise worked out and came face to face with one Abu Hufeza, a member of terrorist outfit Lashker-e-Toyba. On 27.12.2005 HC Sanjeev Shokeen the respondent of W.P.(C) No.5549/2010 and 4 other police officers named SI Rajender Singh, ASI Devender Singh, HC Bijender Singh and Const.Vinod Gautam came face to face with 3 members of terrorist outfit Jaish-e-Mohammed. It may be noted that in all cases there was an exchange of fire in which the gangsters and the terrorists were killed. 7. Subsequent thereto, Deputy Commissioner of Police/Joint Commissioner of Police, as the case maybe, issued citations for out of turn promotion of the respondents and the police officers associated with them to the respective next higher rank for having exhibited extraordinary good work and exemplary gallant work in the elimination of afore-noted gangsters/terrorists. W.P.(C)No.5444/2010 &Conn.Matters Page6 of 50 8. Since we would be highlighting the issue connmonly urged with reference to the presidential gallantry award conferred upon HC Sanjeev Shokeen, which gallantry award was on the basis of the citation issued pertaining to hinn evidencing his having exhibited extraordinary good work and exemplary gallantry, we note at this juncture, the citation issued in respect of HC Sanjeev Shokeen. It reads as unden- This is a citation for out of turn promotion of SI (Exe.) Rajender Singh Sehrawat, D-3532, PIS No.28820273 to the rank of Inspector, ASI (Exe.) Devender Singh, N0.548/SB, PIS No.28871217 to the rank of Sub- Inspector, Head Constable Bijender Singh No.928/PCR, PIS No.28823124 & Head Constable Sanjeev Shaukeen N0.1552/T, PIS No.28980038 to the rank of Assistant Sub Inspectors and Constable (Exe.) Vinod Gautam, N0.4614/DAP , PIS No.28912279 to the rank of Head Constable for their extraordinary good work and exemplary gallant act that led to a successful joint operation with 50 Rashtriya Rifles (Kumaon) on 27/12/2005 in which three members of banned terrorists organization, Jaish-e-Mohammad (JeM) were killed in police encounter at Khrew, PS Pampore, Distt. Pulwama, Jammu & Kashmir, Two AK-56 Assault Rifles, one AK-47, 6 magazines, 3 Hand grenades. Dictaphones, Rubber stamps or Tehsil Cdr. JeM & Principal HS School, Kakapora, Pulwama, memory stick and other indiscriminating documents were recovered. A Case vide FIR No.178/2005 dated 27.12.2005 U/s 307 RPC & 7/27 Arms Act was registered at PS Pampore, Distt. Pulwana, J&K in this regard. ROLE OF POLICE OFFICERS HC Sanieev Shaukeen: He also played a vital role in this operation being with the team member. He visited along with Ct.Vinod Gautam village Khrew many a times, activated his sources and passed many days in the village braving adverse conditions and continued in hospitality. He used all his ability to identify the house of Mohd.Akram Butt and was given the important task W.P.(C)No.5444/2010&Conn.Matters Page 7 of50 to find out whetiier tine terrorists were inside tine fiouse or not. He along with Ct.VinodGautam on the pretext of working for a mobile company that is going to start services in valley befriended the people around. He was able to extract information from his sources with the groundwork he did in the village. He came up with concrete information that there is not only Irifan (a) Suhail inside the house but also 2 more Pakistani nationals (terrorist of JeM) inside the house. On 27.12.2005, when the house of Butt Mohalla, Village Khrew, Pompore, where the terrorists were hidden, was condoned off with a two-tier ring. The outer cordon consisted of officials of SOG while the inner cordon consisted of the official of 50 RR and the Special Cell of Delhi Police. HC Sanjeev Shaukeen also taken part in the evacuation of the civilians, who were resided in the cordoned area, so that general public might be safe. The terrorists opened fire upon police party and in retaliation; HC Sanjeev Shaukeen also fired 18 rounds from his AK rifle to check the casualty of raiding party members. The bullets fired by this daredevil terrorist hit to one of the militants who later succumbed to injuries. HC Sanjeev Shaukeen displayed excellent workmanship combined with dedication towards his job deserved to be promoted to the rank of Assistant Sub-Inspector. HC Sanjeev Shaukeen joined Delhi Police on 20.03.1998. He has earned great reputation in the department by doing continuous good work and there is nothing adverse against him. He has an unblemished record during his service tenure of 7 years. During his service period he has earned 5 Commendation Rolls and total cash reward of Rs.2,500/- Sl Rajender Singh Sehrawat, ASI Devender Singh, HC Bijender Singh, HC Sanjeev Shaulceen and Ct.Vinod Gautam have a track record of doing continuous good work since their joining Delhi Police. They have exhibited highest degree of self-motivation and professionalism not only in this operation but also throughout their police career. Their previous records speak itself about their skill and devotion to their duties (Annexure C, D, E & F respectively except HC Sanjeev W.P.(C) No.5444/2010&Conn.Matters Page8 of50 < Shaukeen). SI Rajender Singh Sehrawat is capable of holding the higher rank of Inspector, as he possesses excellent investigative skill, understanding and operational capabilities far beyond that of a Sub- Inspector, ASI Devender Singh is capable of holding the higher rank of Sub-Inspector. HC Bijender Singh and HC Sanjeev Shaukeen are capable of holding the higher rank of Assistant Sub Inspector & Ct.Vinod Gautann have set an example of gallant act, dedication towards his duty, bravery and brilliant work which is more than what is expected from his rank of Constable and very much deserve to be promoted to the next higher rank of Head Constable. Keeping in view the above mentioned facts and circumstances, I strongly recommend that SI Rajender Singh Sehrawat, ASI Devender Singh, HC Bijender Singh, HC Sanjeev Shaukeen and Ct.Vinod Gautam all of whom without even caring for their lives, courageously faced the desperados, but also saved the lives of their fellow team members and public persons; may be given out of turn promotion to the rank of Inspector, Sub-Inspector, Assistant Sub Inspectors & Head Constable respectively in order to recognize the extra ordinary ad excellent work done by them." 9. Based on the citation the case of the respondents and the other police officers for grant of out of turn promotion to the respective next higher rank was referred to the Incentive Committee constituted in terms of afore-noted order dated 21.09.1999 issued by the Commissioner of Police, which Committee recommended the grant of out of turn promotion to the respective next higher rank to the respondents and the other police officers. The Commissioner of Police approved the aforesaid recommendations of the Incentive Committee. 10. Implementing the approval granted by the Commissioner of Police, all other officers were granted promotion to the next higher rank under Rule 19(ii) of the Rules except the respondents and SI Ramesh Chander and SI Rajender Singh as also HC Surender Kumar, HC Yashpal, HC Dharambir and HC W.P.(C) No.5444/2010 &Conn.Matters Page9 of 50 I r -D Bijender Singh. Qua SI Ramesh Chander and SI Rajender Singh it may be noted that they had earned a right to be promoted even otherwise as per their seniority and thus they were promoted under Rule 5. This appears to be the reason why the said two police officers have remained happy where they are. HC Surender Kumar, HC Yashpal, HC Dharambir and HC Bijender Singh appear to have reconciled to their fate, but the respondents do not want fate to decide their future and are litigating to establish their entitlement for further promotion, which was denied to them. 11. Aggrieved by the act of not granting out of turn promotion to the next higher rank, the respondents made various representations to the department but the same were not considered. Be it noted here that all the respondents made last representation to the department in the month of January 2009. In view of the department not paying any heed to their representations, in the year 2009, the respondents filed applications under Section 19 of Administrative Tribunals Act, 1985 before the Principal Bench, Central Administrative Tribunal, New Delhi praying that the department be directed to grant out of turn promotion to them. Vide order(s) dated 03.09.2009/08.09.2009/10.09.2009 passed by the Tribunal the Original Applications filed were disposed of with the direction that the representations made would be disposed of with a speaking order. Subsequent thereto, the case of the respondents for out of turn promotion was once again referred to the Incentive Committee which opined that the respondents were not entitled to be granted out of turn promotion and in so recommending the Committee sought to draw a distinction in the roles played by other police officers vis-a-vis the W.P.(C) No.5444/2010 &Conn.Matters Page 10 of 50 IT respondents pertaining to tine incidents wlien encounters tool< I place. i 12. Being relevant, the relevant extracts of the reports of the Incentive Committee which reconsidered the issue may be noted as under:- (a) HC Rai Kumar the respondent in W.P.(C) No.5444/10. ! "The Committeeexamined the documentsconnected j with the incident in which a police party which I included HC Raj Kumar, No.3331/SD had an encounter with Janamjay @ Moni in the area of Saharanpur, UP on 1.8.05 in which connection a case of FIR i Nos.261/05 & 262/05 dated 2.8.05 u/s 307 IPC and 25 I Arms Act was registered at PS Kotwali,Saharanpur. On close scrutiny of the case papers, it is found I that neither the FIR nor the DD entry No.5 dated I 2.8.05 at Special Cell, NDR, Lodhi Colony, New Delhi I recorded by Inspector Lalit Mohan nor the Final Report of the case reflect exemplary courage and valour I displayed by HC Raj Kumar which warrants out of turn j promotion. The FIR mentions that on receipt of an i information about the presence of Janamjay @ Moni in I Baraut area, a team under supervision of Inspector I Hriday Bhushan, Sub Inspectors Umesh Barthwal, Ved Prakash No.D/3451, V.N. Jha, Amul Tyagi, Head Constables Yudhveer Singh, Raj Kumar No.3361/SD, Yashpal, Manoj and Constables Mohan No.429/SB & '' I Pankaj was sent to develop an information about the criminal conspiracy. On confirmation of his ; whereabouts ACP Rajbir Singh reached Saharanpur, UP ! with Inspector Govind Sharma and HC Rajender in I order to apprehend Janamjay @ Moni. A team was constituted to be led by ACP Rajbir Singh consisting of I the criminal in the vicinity of Shehenshah Diary ! Chakrata Road, Saharanpur. Various members of the I team approached the hideouts from different directions but were fired upon by the criminal. In self- I defence, ACP Rajbir Singh, Inspector V.P. Singh : Solanki, SI Ved Prakash & Ct. Mohan returned the fire. I A portion of the team consisting of Inspector Alok Singh, SI Umesh & HC Raj Kumar opened fire at the ground floor of hideout of the criminal in self defence. W.P.(C) No.5444/2010 &Conn.Matters Page11 of 50 It mentions that during this encounter, ACP Rajbir Singh fired 1 round, Inspector Alok Singh, SHO Kotwali Mandi 1 round, SI Umesh Barthwal 3 rounds, SI Ved Prakash 2 rounds, HC Raj Kumar 2 rounds and Ct. Mohan 2 rounds from their service weapons. Further FIR and DD are silent about any member of the police party sustaining any bullet injury or the bullets fired by criminals hitting the bullet proof jackets worn by the police officers. Inspector Lalit Mohan recorded DD entry No.5 on 2.8.05 at Special Cell, Lodhi Colony, New Delhi regarding this encounter. The DD entry mentions the details of firing done by the Special Cell police team consisting of ACP Rajbir Singh, SHO Kotwali Mandi and others as mentioned in the FIR. The final report in these two cases does not mention anything beyond the facts mentioned by FIR and DD entry. There is no specific mention of any exemplary valour displayed by HC Raj Kumar. The Committee found no other document to show that the officer had done any outstanding work to warrant out of turn promotion. In the light of the above mentioned facts based on the documents the Committee feels that HC Rai Kumar. No.3331/SD does not deserve out of turn promotion in accordance with rule 19(ii) of Delhi Police (Promotion & Confirmation) Rules. 1980 which reads "officers who have shown exceptional qallantrv and devotion to duty" mav be promoted on out of turn basis by the Commissioner of Police." (Emphasis Supplied) (b) HC Kuldeep Singh the respondent in W.P.(C) No.5446/10. "The Committee examined the documents connected with the incident in which a police party which included Head Constable Kuldeep Singh .... had an encounter with Yaseen and Vinod @ Benami in the area of Police Station Sangam Vihar, Delhi on 11.6.2004 in which connection a case FIR No.442/04 u/s 186/353/307/34 IPC read with 25 Arms Act was registered at PS Sangam Vihar, Delhi. Oh close scrutiny of the case papers, it was found that neither the FIR nor the DD entry No.20 dated 11.6.04, recorded by Inspector Lalit Mohan on return at Special W.P.(C)No.5444/2010 &Conn.Matters Page12 of 50 -V Cell, NDR, Lodhi Colony, New Delhi nor the final report of the case reflect any exemplary courage and valour displayed by HC Kuldeep which warrants out of turn promotion. The FIR mentions that a team headed by ACP Rajbir Singh consisting of Inspectors Govind Sharma, Hriday Bhushan, Sub-Inspectors Badrish Dutt, Arvind, Umesh Bartwal, Ravinder, Anil, V.N. Jha, Rahul, Asstt. Sub-Inspectors Rishi Pal, Devender, Vikram, Ashok Sharma, Head Constables Kuldeep Kumar....positioned themselves at the scene of the encounter. In the encounter, when criminals opened fire on the police team, the police also resorted to fire in self-defence. In the process, both Yaseen and Vinod @ Benami were injured, who later succumbed to bullet injuries. The DD entry No.20 made by Inspector Lalit Mohan also mentions that police party was fired upon during the shootout. Seeing no other option, the police party returned fire in self-defence. It further mentions that ACP Rajbir Singh fired 4 and 5 rounds from his service revolver and pistol, respectively. Inspector Hriday Bhushan 6 rounds....In all, 37 rounds were fired by the police party including 5 rounds by HC Kuldeep... Further FIR and DD are silent about any member of the police party sustaining any bullet injury from firing by the criminals hitting the bullet proof jackets worn by the police officers. The final report of the case prepared on 28.5.07 also does not make any mention of exceptional bravery on the part of HC Kuldeep N0.128/SB. The Committee found no other document to show that the officer had done any outstanding work to warrant out of turn promotion. In the light of the above mentioned facts based on the documents the Committee feels that HC Kuldeep No.l28/SB does not deserve out of turn promotion in accordance with rule 19(ii) of Delhi Police (Promotion & Confirmation) Rules. 1980 which reads "officers who have shown exceptional gallantry and devotion to dutv" mav be promoted on out of turn basis by the Commissioner of Police." (Emphasis Supplied) W.P.(C) No.5444/2010 &Conn.Matters Page 13 of50 V n/o t i (c) HC Manoi Kumar the respondent in W.P.(C) No.5458/10. "The Committee examined the documents connected with the incident in which a poiice party which included Head Constable Dharamvir No.263/SB & Head Constable Manoj Kumar, No.3335/T had an encounter with Ranbir Rathi in the area of Police Station Sarita Vihar, Delhi on 10.05.05 in which connection a case FIR No.201/05 u/s 186/353/307 IRC, 25 Arms Act was registered at PS Sarita Vihar. On scrutiny of the case papers, it was found that neither the FIR nor the DD entry No.14 dated 10.5.05 recorded by Inspector Lalit Mohan on return at Special Cell, NDR, Lodhi Colony, New Delhi nor the Final Report