Shri Sudhir Kumar, Member (A):
The applicant was appointed as Constable in Delhi Police on 08.03.1982 and was promoted to officiate in the rank of Head Constable (Executive) (H.C.(E), in short) with effect from 19.10.2006 through Annexure A-3 order dated 20.10.2006. On 17.01.2011, a show cause notice was issued to the applicant stating that though his name was admitted to the promotion list âC (Executive) with effect from 19.10.2006 when the DPC meeting was held, it was not brought to the notice of the Departmental Promotion Committee (DPC, in short) that he was involved in a criminal case vide FIR No. 213/88 under Section 306 IPC PS Kakod, Distt Bulandshahar (now Noida) UP, and had these facts been brought to the notice of the DPC, the finding with regard to his suitability for promotion as H.C.(E) would have been kept in a sealed cover, in terms of the provisions contained in Rule 5(iii) of Delhi Police (Promotion and Confirmation) Rules, 1980, and that his promotion would have been held in abeyance till the decision of the criminal case. It was stated that this omission has resulted in erroneous inclusion of his name in the promotion list âC (Executive) and further promotion to the rank of HC (E), due to non-observance of the requirement that the sealed cover procedure was required to be followed in his case.
2. It was further stated that since the Govt. of Indias decision cited below FR-31-A stipulates that the orders of Notification of promotion of a Government servant should be cancelled as soon as it is brought to the notice of the Appointing Authority that such a promotion or appointment has resulted from a factual error, and on such cancellation, the Government servant concerned should immediately be brought to the position, which he would have held but for the incorrect order of promotion or appointment.
3. The applicant filed a reply to the show cause notice through Annexure A-4 dated 17.02.2011 and submitted that it is incorrect to say that the DPC was not aware of his involvement in the aforesaid case. He further contended that 4 departmental enquiries were ordered against him in respect of aforesaid case in the year 1988-89, (i) for being involved in the criminal case, (ii) for not informing the department about registration of aforesaid case, (iii) regarding absence pertaining to the period of arrest, and (iv) for registration of a criminal case, and that these facts are mentioned in the Service Book, which, too was gone into by the DPC, and that the penalty of censure had been awarded to him for not informing the department about his arrest in such criminal case, through order dated 03.03.2009, which had also formed a part of the service record, which was gone into by the DPC held on 19.10.2006.
4. The applicant has further pleaded that the DPC was fully aware about his involvement in the criminal case, as the entire particulars were before the DPC by way of Service Book, Punishment Record, as well as Annual Confidential Reports, and, therefore, the decision of the DPC for not adopting the sealed cover procedure under 5(iii) of the Delhi Police (Promotion and Confirmation) Rules, 1980, was taken as a conscious decision, and the authorities concerned would adopt the procedure are only optional provision and not mandatory provision. He had, therefore, pointed out that the promotion granted to him in the year 2006 was in order.
5. It was further pleaded by the applicant that the show cause notice issued to him was bad in law, and had been issued without competency, as in accordance with para-4 below FR 31-A of the Govt. of Indias decision, the question whether promotion/appointment of a Government servant to a post was erroneous or not should be decided by an authority next higher than the Appointing Authority in accordance with the established principles governing promotions/appointments. He had pointed out that since in the instant case, the proceedings had been initiated, and the decision taken to the effect that the promotion was erroneous had been taken by the Appointing Authority i.e. DCP, such proceeding initiated by an incompetent officer cannot be sustained, and hence the impugned show cause notice itself was bad in law.
6. The applicant had further pointed out in his representation that the concerned Govt. of Indias decision under FR 31-A further requires fixation of responsibility on the erring official, on whose count a wrong promotion came to be effected, and he had therefore requested that in case his promotion was erroneous, it was for the an authority higher than the Appointing Authority to decide the issue and take appropriate action against all erring officials. However, the applicant has submitted that none of the contentions raised by him in his detailed reply through Annexure A-4 dated 17.02.20111 was considered by the respondents, and without adhering to the instructions, the impugned order dated through Annexure A-1 dated 28.03.2011 has been passed, cancelling the admission of his name to the promotion list âC (Executive) with effect from 19.10.2006, and further ordering that his case for promotion will be considered on the finalization of the criminal case pending against him.
7. The applicant had further submitted that the impugned order dated 28.03.2011 has been served upon him, but has not been given effect to as yet, and the applicant has still been addressed only as HC, and a formal order placing him in the rank of Constable has not yet been issued, which is required to be issued by the Department before he is addressed as a Constable in future. It is further submitted that his posting as Constable has also not yet been issued, and, therefore, the applicant had prayed for an interim protection of his status, rank etc. as a Head Constable. He has further assailed the actions of the respondents on the ground that not only the DPC, but also the higher authorities, who have been involved in the process of acceptance of DPC recommendations, had also nowhere raised any objection to the applicants promotion, giving raise to a strong presumption that the pendency of the criminal case for almost two decades had also lost its sting in the matter of applicants promotion, since the criminal case had not proceeded till date, due to a stay against those proceedings obtained from Allahabad High Court in Criminal Revision No.1742/1990 by a co-accused.
8. The applicant has taken a ground that the respondent-authority cannot adopt âpick and choose method and apply only a portion of the government of Indias decision, and if the authorities wish to take resort to the Government of Indias decision below FR 31-A, it is mandatory to resort to the whole of the decision in toto, and that serious and suitable disciplinary action should be taken against the officers and the staff concerned for erroneous promotion having been given to him.
9. The applicant has further taken the ground that even if the sealed cover procedure had been adopted in this case, there are Government of Indias instructions existing, which allow Ad hoc Promotion to be considered by the DPC in such cases, and this aspect was also required to be considered by the said Committee, before issuing any order of reversion. It was further submitted that since none of the contentions taken by him in his reply to the show cause notice were considered by the respondents, and the impugned order has been issued against him in violation of the Government of Indias decision, it is, therefore, illegal and liable to be set aside. In the result, he had prayed for the following reliefs:
â(a) quash and set aside the impugned order and show cause notice and accord all consequential benefits to the applicant.
(b) award costs of the proceedings and
(c) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.â
10. Respondents filed their counter reply on 12.09.2011, and after accepting the basic facts, as given by the applicant and described above, they had denied that the fact of pendency of criminal case was brought to the notice of the DPC, which was held on 19.10.2006, and had justified their action to cancel the erroneous promotion, since the Government of Indias decision No.2 below FR 31-A stipulates that the orders of notification of promotion of the Government servant should be cancelled as soon as it is brought to the notice of the Appointing Authority that such a promotion or appointment has resulted from a factual error. They had, therefore, justified the order issued, and had submitted that the approval of the competent authority, i.e. Jt.C.P./HQ, above the applicants Appointing Authority, was ordered on the note-sheet on 15.01.2011. The applicant had submitted his reply to the show cause notice on 17.02.2011, which culminated in the impugned order dated 28.03.2011 having been passed. It was submitted that the applicant was also given personal hearing in the Orderly Room on 23.02.2011, during which he himself admitted that he was involved in the criminal case, because of which the impugned orders had been passed.
11. It was further submitted that since the DCP is the Appointing Authority in respect of Constables/Head Constables, as per Rule 7(iii) of Delhi Police (Promotion and Confirmation) Rules, 1980, and the approval of the competent authority, i.e. Jt.C.P., who is higher than the applicants Appointing Authority, had already been obtained for his reversion, the competent authority was fully competent to order for the respondents taking such action. It was further submitted that the responsibility of ASI Balbir Singh, who had failed to show the facts of criminal case which is pending against the applicant in his Service Book, and is presently posted in PandL Unit, had already been fixed as per DCP/SWD endorsement dated 03.12.2010. It was, therefore, prayed that the OA does not deserve any merit, and the orders to cancel the applicants promotion issued under Rule FR 31-A are justified.
12. The applicant filed a rejoinder on 30.03.2012, more or less reiterating his contentions in the O.A. It was submitted by him that actual decision of his reversion has to be taken by an authority higher than the Appointing Authority, and admittedly the respondents in the present case have taken a decision to revert the applicant at the level of Appointing Authority, while the approval of the Jt. Commissioner of Police was taken only for initiating the proceedings, before the show cause notice was issued. It was submitted that once an action is prescribed to be done in a particular manner, it has to be done in that manner alone, or it cannot done, at all, and that the instructions do not recognize the methodology adopted by the respondents, while they were bound to act as per rules.
13. It was submitted that the exercise of taking a decision is distinct from the act of merely approving a decision already taken, and that even the alleged approval of the Jt. Commissioner of Police, HQ., has not been placed on record, and that the respondents have avoided for the records to be placed on record, in order to escape its analysis and examination. It was further submitted that the respondents had also failed to substantiate their averments regarding the action having been taken against the erring official, as prescribed in the Government of India instructions. It was further submitted that the fixing of responsibility of the above officer at the lowest rung for the lapse is no compliance of the Government of India instructions, as it is not solely the ASI, but also all his superiors upto the rank of DCP, who had processed, approved and forwarded the applicants particulars, and said higher officers should also have been dealt with appropriately, to effectuate full compliance of the Governments instructions, and that the Department must not shy from fixing responsibility of the senior officers to give effect to the rule of law. It was further submitted that likewise, officers involved in the exercise of issue of promotion order of the applicant cannot also escape their responsibility, but no action has been taken against them also, which shows that the Government of Indias instructions have been applied against the applicant in a selective manner, and fixation of responsibility on only one officer of very junior level is only an eye-wash, while many others including high rank officers are also required to be dealt with.
14. It was further submitted that while issuing the reversion orders, the respondents have failed to consider that the applicant was otherwise also entitled for ad hoc promotion after the expiry of two years from the date when the sealed cover procedure was required to be adopted by the DPC. Had this consideration been there, adopting the analogy thereof, the applicant would not have been deprived of the rank of Head Constable. It was submitted that this submission is being made as an alternate plea, and was raised by the applicant in his reply to the show cause notice, as well as in his OA, but has not been considered at all at the departmental level, and it was prayed that this plea may be considered by this Tribunal, in the event the main pleas of the applicant are not found satisfactory. In the result, it was prayed that the OA may be allowed.
15. Heard. The case was argued vehemently by the learned counsel for both sides on the above lines, and no new arguments/points were put forward before the Bench.
16. It is seen that in the Govt. of India decision below FR 31-A, it has been prescribed through OM dated 14.03.1963 as follows:-
âRefixation of pay on de-confirmation- It has been decided that the following provisions shall govern the pay and increments of a Government servant whose promotion or appointment in a substantive or officiating capacity to a post is later found to be erroneous on the basis of facts.
The orders of notification of promotion or appointment of a Government servant should be cancelled as soon as it is brought to the notice of the Appointing Authority that such a promotion or appointment has resulted from a factual error and the Government servant concerned should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect order of promotion or appointment.
In the case, however, of a Government servant who has been erroneously promoted and appointed to a post in a substantive capacity, the procedure prescribed in the Ministry of Home Affairs, Office Memo. No. 32/5/54-Ests. (A), dated the 24th November, 1954 (not printed), superseded by O.M. No. 12/2/67-Estt. (D), dated the 21st March, 1968 (extract give below) for de-confirming the Government servant in that post should be followed and only thereafter the Government servant concerned should be brought down to the position which he would have held but for the erroneous promotion/appointment by the issue of orders as mentioned above. Service rendered by the Government servant concerned in the post to which he was wrongly promoted/appointed as a result of the error should not be reckoned for the purpose of increments or for any other purpose in that grade/post to which he would not normally be entitled but for the erroneous promotion/appointment.
3. Any consequential promotions or appointments of other Government servants made on the basis of the incorrect promotion or appointment of a particular Government servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph.
4. Except where the Appointing Authority is the President, the question whether promotion/appointment of a particular Government servant to a post was erroneous or not should be decided by an authority next higher than the Appointing Authority in accordance with the established principles governing promotions/appointments. Where the Appointing Authority is the President, the decision should rest with the President and should be final. The Ministry of Home Affairs should be consulted in respect of promotion/appointments in the Service administratively controlled by that Ministry. In other cases also, the Ministry of Home Affairs may be consulted if any point is doubtful.
5. 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)â.
17. It is clear from the above clarification that the promotion or appointment of a Government servant can be cancelled as soon as it is brought to the notice of the Appointing Authority that such a promotion and appointment has resulted from a factual error, and that the Government servant can be brought to the position, which he would have otherwise held, but for the incorrect order of promotion or appointment. In the case of a Government servant, who has been erroneously appointed or promoted in a substantive capacity, for de-confirming the Government servant in that post, the procedure as prescribed has to be followed, and only thereafter the Government servant concerned can be brought down to the position, which he would have otherwise held, but for the erroneous promotion/appointment. In both these cases, the service rendered by the Government servant concerned in the post to which he was wrongly promoted/appointed as a result of the error should not be reckoned for the purpose of increments, or for any other purpose, in that grade/post to which he would normally not have been entitled to, but for the erroneous promotion/appointment. It has been further prescribed that any consequential promotions or appointments made on the basis of the incorrect promotion or appointment of a particular Government servant will also be regarded as erroneous, and have to be regulated on the same lines.
18. Para-4 of the Circular prescribes that in cases other than where the Appointing Authority is the President, the question as to whether the promotion/appointment of a particular Government servant to a post was erroneous or not should be decided by an authority higher than the Appellate Authority, who had first made such erroneous promotion or appointment, and as rightly pointed out by the applicant, Para-5 of the Circular prescribes that in cases of erroneous promotion/appointment in a substantive or officiating capacity being granted, suitable disciplinary action should be taken against the officers, and staff, who are found to be responsible for grant of such erroneous promotion. It was submitted by the respondents that Para-5 of the instructions has already been implemented, and the responsibility has been fixed on ASI Balbir Singh, and action has already been initiated separately against him for not showing the facts of the pendency of the criminal case against the applicant.
19. The condition in Para-5 of the above OM having been satisfied, the only question which now remains to be seen by us is as to whether the orders for cancellation of the erroneous orders of promotion of the applicant were issued by an authority competent to issue them or not. The applicant has alleged that since the approval of the Joint Commissioner of Police who is higher than the Appointing Authority, was only for starting the procedure or to process for initiating the proceeding, and before the Show Cause Notice was issued to him, and that thereafter the file was not sent to him once again, the orders issued finally are illegal. However, we are of the view that when once a decision has been taken with the approval of the Joint Commissioner of Police, who had approved initiating the process for cancellation of the erroneous promotion of the applicant, thereafter it was only a routine matter for the concerned authorities to pursue, and to give effect to the orders of the Joint Commissioner of Police.20. The applicant has tried to seek shelter behind the legal maxim that a thing should be done in the same manner, as it has been prescribed to be done, and not otherwise. Here in the instant case, since the approval of the Joint Commissioner of Police for cancelling the erroneous promotion, by following the proper procedure in this regard, had already been obtained, the applicant cannot now be allowed to plead that approval of the Joint Commissioner of Police should have been obtained once again a second time also, after the whole process of issuing him a Show Cause Notice and considering his reply had been completed, which does not appear to be a requirement of Para-4 of the Govt. of India OM dated 14.03.1963 as re-reproduced in Para-16/ above.
21. This is not a case, which can be sought to be covered under the judgment of the Honble Apex Court in Mohinder Singh Gill v. Chief Election Commissioner : 1978 (1) SCC 405, as in this case the respondents have not later on improved upon any of the actions taken or reasons given by them earlier. Rather the case would be fully covered by the findings of the Honble Apex Court in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji AIR (39) 1952 SC 16, stating as follows:-
âPublic orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itselfâ.
21. In the instant case, it not being a case of the respondents having tried to improve upon their orders as passed earlier, and since the approval of the Competent Authority had already been obtained in advance before starting or undertaking the procedure for cancellation of the erroneous promotion of the applicant, we do not find that the respondents have in any way deviated from the procedure as prescribed in regard to the cancellation of an erroneous promotion granted to the applicant during the pendency of the criminal case against him, and, therefore, the applicant cannot be allowed to assail the impugned order dated 28/30.03.2011, and this OA is, therefore, dismissed, but there shall be no order as to costs.