Oral: (G. George Paracken:)
Both these Original Applications are identical and, therefore, they are being disposed of by this common order. For the sake of convenience, the facts in OA 2180/2012 have been taken and they are as under.
2. In response to the Office Memorandum No. 3475-3515/Trg. Br. Ist Bn. DAP dated 01.07.2011 issued by the respondents regarding selection of Constables (Executive) for Armourers Course, the applicant submitted his application and the same was duly forwarded to the Deputy Commissioner of Police (Ist Bn.) Delhi by the Deputy Commissioner of Police, South District, vide Annexure-6 letter dated 25.07.2011 but it was returned immediately by the DCP (DAP) on 27.07.2011 itself seeking a clarification whether the applicant was unmarried or not and making it clear that only unmarried Constables will be considered for the said course. As the applicant was married person, his application was not thereafter forwarded.
3. However, the private respondents 7 and 8, namely, Shri Prem Prakash and Shri Vijay Kumar who have applied for the aforesaid course have been selected and they are undergoing the training at EME Secunderabad.
4. The applicant challenged the non-consideration of his application and the selection of the private respondents in this O.A. In this regard, he has relied upon Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 1980 dealing with recruitment of Armourers. His contention is that the said Rules do not make any distinction between the unmarried and married constables for the purpose of recruitment of Armourers and reads as under:
â(1) A select list of matriculate/equivalent constables with not less than 3 years of service having an aptitude to work as armourer shall be prepared by the Board of Officers, consisting of D.C.P/Ist Bn. D.C.P./Lines and Inspector (Arms for training as armourers. Their names shall be placed on the approved list in order of seniority based on date of appointment and the date of bringing names on the list. The approved candidates will work as helpers and remain under training with qualified armourers for familiarising themselves with various components of arms sanctioned for Delhi Police.
(2) After the training of 6 months, they shall be tested a board of officers to be nominated by Additional Commissioner of Police (APandT) for training in 48 weeks basic armourers course of Armoury School of instructions according to the number of instructions seats allotted to the Army Authorities. On successfully completing the armours Basic Training Course, they shall be appointed as Armourers against the sanctioned posts according to their seniority reckoned from the date of passing the course. Those qualifying on the same date, shall have inter-seniority of the basis of their original seniority in the rank of constables.â
5. The applicant has, therefore, made a representation on 05.08.2011 stating that the recruitment rules for the post of Armourer only stipulate that the candidates/persons who want to pursue Armourers course should only be confirmed constables of Delhi Police having three years service and there is no condition that one should be unmarried. However, the respondents did not respond to his aforesaid representation.
6. Later on, the Deputy Commissioner of Police (Ist Bn.) (DAP) in his letter dated 04.08.2011 to the Deputy Commissioner of Police (Provision and Logistic), Delhi stated that the willingness/requests of six Constables have been received from various Districts/Units for the selection of Armourer course and as per Rule 15 of the Delhi Police (Appointment and Recruitment) Amendment Rules 1987, their eligibility test/interview was conducted with the help of the latter who was also a Member of the Committee. Further, it has been stated that the interview date/eligibility test of willing Constables for selection of Armourer course has been fixed on 08.08.2011 in the Chamber of DCP-Ist Bn. DAP, Delhi. The applicant was also informed about the aforesaid interview/eligibility test but the Board declared him unfit/disqualified for the said course on the ground that he was married, as per the circular dated 01.10.2004. He was also informed accordingly, vide letter dated 12.09.2011. According to the aforesaid circular dated 01.10.2004, the Joint Commissioner of Police (Headquarters), Delhi has decided to call applications from volunteers who are young and unmarried constables from all the Districts/Units to select two Constables each year for the next 5 years as per Rule 15 (i) of Delhi Police (Appointment and Recruitment) Rules, 1980. Applicant sought information under the Right to Information Act, 2005 as to whether there was any condition that the candidate should be unmarried as per the Delhi Police (Appointment and Recruitment) Rules, 1980 for selection for the Armourers course. The respondents, vide letter dated 29.09.2011, informed the applicant that as per the orders of the senior officers, it was decided that only unmarried Constables will be sent for training in Armourers course.
7. The respondents in their reply have not disputed the facts stated by the applicant. They have stated that the Board declared the applicant unfit/disqualified as per the circular dated 01.10.2004 for the Armours course on the ground that he was married and he was informed accordingly, vide letter dated 12.09.2011. They have also stated that only unmarried constables were called for and the Selection Committee did not entertain the applicant and rejected his candidature only on that ground. Further, they have stated that even though it has not been stated in Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 1980 about the marital status of the candidates but considering the duration of the Training with the Armed Personnel, the Special Commissioner of Police/Administration had thought it fit that `the police and initiation of the further training of the Armourers course of one year at EME Secunderabad should be only from the unmarried Constables.
8. The applicant challenged the aforesaid circular as well as the decision of the respondents in not considering him for the Armourers course in terms of Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 1980 on the ground that in terms of the Recruitment Rules for the post of Constable (Armourer), he is fully eligible for consideration for appointment. Further, he has stated that the action of the respondents rejecting his application on the ground that he was a married person is arbitrary and violative of Articles 14 and 16 of the Constitution of India. He has also stated that as per the circular dated 01.10.2004 based on which his request was rejected, the respondents have done hostile discrimination between the married and unmarried constables inasmuch as that only unmarried constables can be considered for the post of Constable (Armourer) and can be sent for Armourer Course. The applicant has also stated that when Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 1980 does not make any distinction between married and unmarried constables for the purpose of Armourer Course, no administrative instructions could be issued which is contrary to the provisions of the Rules. Further, his submission is that even the private respondents who have been selected have adopted deceitful means to get shortlisted for Armourer Course as both of them have concealed the fact that they are married persons. In support of his contention, he has produced copy of Electoral Roll, 2012 of Assembly Constituency, Najafgarh wherein the name of one of the private respondents Shri Vijay Kumar appears at Serial No. 85 and his wifes name appears at Serial No. 84. Similarly, in the case of Pradeep Kumar, his name appears in the voters list of Garhi Sanpla-Kiloi Constituency against Serial No. 313 and his wifes name against Serial No. 311.
9. Shri Yogesh Sharma, learned counsel representing the private respondents has, however, submitted that he does not dispute that the candidature of the applicant was rejected not in accordance with the provisions contained in Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 180. However, he has submitted that since the private respondents have been duly selected and they have gone ahead with the training, they should be allowed to continue and complete it after declaring that they have been duly selected. However, the official respondents may, if necessary, conduct a fresh selection and if the applicants are selected, they can also be sent for armours course.
10. We have heard Shri Sourabh Ahuja, learned counsel for the applicant and Shri N.K. Singh proxy for Mrs. Avnish Ahlawat for the official respondents and Shri Yogesh Sharma for the private respondents. There is no dispute that the selection of candidates for the Armourer Course has been conducted in violation of the provisions contained in Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 1980. The said Rule has been extracted elsewhere. Nowhere, it is stated therein that the candidate should be a married person. Therefore, the Joint Commissioner of Police (Headquarters), New Delhi has no competence whatsoever to issue the circular dated 01.10.2004 prescribing that for the Armourer Course, the candidates shall be an unmarried Constable. The Apex Court in the case of State of Madhya Pradesh and Anr. Vs. M/s G.S. Dall and Flour Mills (JT 1990 (4) SC 430) held that âExecutive instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory provisions or whittle down their effect.
11. A similar situation has been considered by the Honble High Court of Delhi in ASI Devender Kumar Vs. Govt. of NCT of Delhi and Ors. (WP (C) No. 8841/2008), decided on 16.07.2009. The petitioner therein was appointed as Constable in Delhi Police. He was granted the first out of turn ad hoc promotion as Head Constable and later he was granted second out of turn promotion on ad hoc basis as ASI. These out of turn promotions were given to him under Rule 19 (ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980. Later on, accused Sher Singh Rana, who was involved in the murder of Smt. Phoolan Devi (Member of Parliament), escaped from Tihar Jail and a reward of Rs.50,000/- was declared on his arrest by the Delhi Police. A team of 8 police officials was constituted to nab accused Sher Singh Rana. Petitioner was one of the members of the said team. He and his teammates made untiring efforts continuously for more than six months and nabbed the accused Sher Sngh Rana in Kolkatta. DCP (Special Branch) sent a citation for him and his four other teammates for out of turn promotion to the next higher ranks on 27.06.2006. The Incentive Committee also considered their cases and made recommendation for out of turn promotion to SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar. However, it decided not to recommend the case of the petitioner for grant of out of turn promotion. He challenged the aforesaid decision before the Tribunal vide OA No. 1512/2007 on the ground of discrimination and violation of Articles 14 and 16 of the Constitution. However, this Tribunal, vide order dated 18.09.2008, held that ad hoc out of turn promotion depended upon the number of vacancies available in a given year and the number of persons being considered for such promotion and it may so happen that the number of vacancies in a year are large and number of recommendations are only few or it may be vice versa. Depending upon those facts, Incentive Committee could mould the policy to be followed on the basis of situation prevalent in a particular year. However, the High Court held that the aforesaid view taken by the Tribunal was erroneous. The High Court held that sub-section (1) of Section 147 of the Delhi Police Act provides that the Administrator may make rules for carrying out the purposes of the said Act and no circular, guidelines or office memorandum can supplant the substantive rules. No policy can be made contrary to the statutory rules. The relevant part of the said order reads as under:
â6. Vide impugned order dated 18th September, 2008 the Tribunal held that ad hoc out of turn promotion depended upon the number of vacancies available in a given year and the number of persons being considered for such promotion. It may so happen that the number of vacancies in a year are large and number of recommendations are only few or it may be vice versa. Depending upon these facts, Incentive Committee can mould the policy to be followed on the basis of situation prevalent in a particular year. Depending upon the circumstances, Incentive Committee can restrict out of turn promotion to those who have already got upto two such promotions in the past and discrimination cannot be pleaded as long as all the aspirants, in a particular year are treated equally as per the common criteria. Petitioner could be compared with those who were considered for out of turn promotion in the year in which members of Kolkatta team were considered. Comparing the Petitioner with other members of the Kolkatta team it cannot be said that he was discriminated as they were not granted third out of turn promotion. Tribunal concluded that the Petitioner was not discriminated as he was declined third out of turn promotion as per the policy made by the Incentive Committee in that particular year.
7. We are of the opinion that the view taken by the Tribunal is erroneous in the factual and legal context of the present case.
8. Petitioner is a member of Delhi Police. Clause (b) of Section 5 of Delhi Police Act (for short hereinafter referred to as âsaid Act) provides that the recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi Police shall be such as may be prescribed. Sub-section (1) of Section 147 of the said Act provides that the Administrator may make rules for carrying out the purposes of the said Act. Sub-section 2(a) of Section 147 of the said Act shows that the Administrator has power to make rules regarding recruitment, pay, allowances and all other conditions of service of the members of the Delhi Police under Clause (b) of Section 5.
9. The Delhi Police (Promotion and Confirmation) Rules, 1980 (for short hereinafter referred to as âsaid Rules) have been framed by the Administrator in exercise of the power conferred upon him by Sub-section (1) of Section 147 of the said Act. Thus, promotion and confirmation of the Petitioner and other members of the Delhi Police is governed by the said Rules. Rule 5 of the said Rules contains general principles for promotion of the member of the Delhi Police. However, rule 19 deals with the ad hoc promotion and the same reads as under:-
â(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 order of seniority to next higher rank temporarily. Such promotions shall not entitle the officers concerned to claim any right for regular appointment or seniority or for appointment to such or any other equivalent 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 prior approval of 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 purposes of seniority such promotes 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 (DAP IVth Bn. At present) personnel of appropriate merit and talent may grant one rank promotion as in 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 list. Such promotes shall revert to their substantive rank as soon as they are transferred out of training institutions and ceased to be an Instructor.â
10. It is, thus, clear that Sub-rule (ii) of Rule 19 governs out-of-turn promotion to the members of the force, who show exceptional gallantry and devotion to duty. However, such promotion can be granted subject to the availability of vacancies and with further stipulation that such promotion shall not exceed 5 per cent of the vacancies likely to fall vacant in the given year in the rank. This rule appears to have been framed in order to encourage the hard-working, dedicated and devoted police officials. Rule 19 of the said Rules does not put any restriction to the number of out of turn promotions to a particular officer/police official. There is no bar that third out of turn promotion cannot be granted to deserving officer, who had shown devotion to duty and displayed gallantry.
11. Rule 19 of the said rules has statutory force having been framed by the Administrator in exercise of the powers vested in him by virtue of sub-section (1) of Section 147 of the said Act. Accordingly, no circular, guidelines or office memorandum can supplant the substantive rules. No policy can be made contrary to the statutory rules. Accordingly, we are of the view that Respondent could not have denied third out of turn promotion to the Petitioner who was similarly placed vis-Ã -vis his other teammates named SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar, being part of the same team which nabbed accused Sher Singh Rana.
12. We are of the view that the decision of the Respondent denying out of turn promotion to the Petitioner on the alleged ground of his having already received two out of turn promotions while granting out of turn promotion to other team members i.e. SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar is arbitrary and is not sustainable.
13. It appears that in the past SI Rajiv Kumar, SI Uma Shankar and SI Rakesh Kumar were given third out of turn promotions in the year 2006, 2005 and 1999 respectively. However, Petitioner has been denied third out of turn promotion on the ground that he had already received two out of turn promotions in the past. In spite of the fact that Respondent had granted third out of turn promotion to some of the members of the force in the past, their action in denying third out of turn promotion to the Petitioner is arbitrary and discriminatory and violates Article 14 of the Constitution of India.
14. In the above factual matrix and the legal position applicable to this case, we are of the view that the Tribunal has taken erroneous view in holding that Respondent was justified in declining third ad hoc promotion to the Petitioner in terms of the policy decision taken by the Incentive Committee. We, accordingly, allow the writ petition and set aside the impugned order passed in OA No. 1512/2007 and direct the Respondents to accord benefit of out of turn promotion to the Petitioner on the post of Sub-Inspector on ad hoc basis with effect from the date when three other members of the Kolkatta team namely, SI Neeraj Kumar, HC Satish Kumar and Ct. Surender Kumar were granted ad hoc promotions. Petitioner be also given all consequential benefits. The writ petition is allowedâ.
12. In the above facts and circumstances of the case and the law laid down by the Apex Court as well as the High Court of Delhi, referred to above, when there is a specific rule it has to be followed in its letter and spirit. By an administrative order or circular, the provisions of the rules cannot be altered. When Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 1980 does not make any distinction between the police constables who are married and unmarried for the purpose of Armourers training, the letter/circular issued later on by the Joint Commissioner of Police (Headquarters), Delhi confining such training only to the married constables is absolutely illegal and wrong. It is seen that the private respondents have been selected on the basis of the aforesaid illegality committed by the respondents. It is a well settled law that an illegality cannot be sustained and, therefore, the appointment of the private respondents Nos. 7 and 8 shall also be liable to be held invalid even though they are in the middle of their training course. Allegations against them that they are not unmarried people and they misrepresented themselves before the selection authority stating in their application forms that they are unmarried, are also liable to be enquired into.
13. We, therefore, allow the O.As. and quash and set aside the selection of the private respondents 7 and 8 for the purpose of Armours training. We do not find any justification for adopting the course suggested by the learned counsel for the private respondents, Shri Yogesh Sharma. If it is accepted, then every illegal appointment will get regularized by judicial fiat and those who are eligible and more meritorious will be deprived of their constitutional right to be fairly considered for selection and appointment against the advertised posts. Once the selection has been made on illegal basis having no force of legitimacy, it cannot be sustained. We, therefore, direct the respondents to cancel the selection of the private respondents and conduct fresh selection for the Armours training strictly in terms of Rule 15 of the Delhi Police (Appointment and Recruitment) Rules, 1980 and ignoring the circular dated 01.10.2004 issued by the Joint Commissioner of Police (Headquarters), New Delhi. Since there is a strong allegation that the private respondents have misrepresented about their marital status, the Ist respondent shall order an enquiry in the matter and if it is found that there is truth in it, appropriate action as deemed fit shall be taken against them, after due notice to them. There shall be no order as to costs.
14. Let a copy of this order be placed in O.A. 2181/2012.