Bombay HC directs promotion of IPS Officer, put on compulsory wait, effective from the date when Batchmates were promoted
The Bombay High Court granted relief to an IPS officer who was out on compulsory wait while his batchmates were promoted, holding that it was unfair the matter to be reopened and reviewed after 9 years.
Facts of the case were as follows. The petitioner was an IPS officer initially appointed as Asst. Superintendent of Police. He later served as DCP of Zone VIII and as also DCP, Economic Offences Wing, Mumbai Police. He was promoted as Assistant Inspector General in the Special Protection Group, New Delhi. The petitioner was relieved from his posting in the Special Protection Group on 12.04.2000 and was asked to join his home cadre consequent to which he submitted his resignation from service dated 12.04.2000. The petitioner also submitted leave applications in the meanwhile. The State however, refused to accept the resignation citing regularization of his period of absence and monies owed to the state.
The petitioner later prayed for withdrawal of his resignation due to inability to pay the dues. However, the State accepted his resignation with retrospective effect. The petitioner challenged the same before the Principal Bench, Central Administrative Tribunal, New Delhi which set aside the notification accepting the resignation and directed the reinstatement with consequential benefits and directed compliance of the order within 2 months. A writ petition was filed before the High Court of Delhi wherein it was contended that the petitioner had taken up private employment after tendering resignation and the Tribunal, even though was appraised of the same, went wrong in reinstating the petitioner. The writ petition was dismissed.
The petitioner later filed contempt petition before the Tribunal alleging that even though he was reinstated, he was not paid the consequential benefits as directed by the Tribunal. The Tribunal later directed that the consequential benefits would have to be disbursed to him. He was not paid his consequential monetary benefits and his seniority was not restored and that he was posted only as Superintendent of Police while his batchmates were Deputy Inspector of Police. Subsequently, show cause notice regarding departmental proceedings were initiated against the petitioner for taking up private employment after tendering the resignation. Meanwhile, his period of absence was regularized. A subsequent contempt petition regarding the non-payment of consequential benefits was also disposed of with direction to comply the same.
The departmental proceedings however were later decided to be dropped after it was decided that the petitioner be reprimanded about his negligence for joining private employment. All this while, the petitioner was not given consequential benefits and was kept on compulsory wait without any posting, promotion, salary, consequential benefits, housing, staff or any other benefits.
The petitioner approached the Central Administration Tribunal, Mumbai, seeking a direction that the respondents consider the petitioner for ‘Proforma promotion’ to the rank of DIG and Special IG from the date his immediate juniors had been promoted which was allowed directing the respondents to give a suitable post to the petitioner at the level of D.I.G. The said order was not complied with and the petitioner filed a contempt petition. The Respondents however, filed a writ before the High Court challenging the decision of the Tribunal. The same was also dismissed confirming the order of the Tribunal. A further Contempt petition resulted in an order appointing the petitioner as a DIG and benefits being paid to him. However, citing the lack of Annual Confidential reports, the petitioner was recommended as ‘unfit’ for promotion to the rank of Special Inspector General.
The petitioner again approached the Tribunal and sought Proforma Promotion on par with his batchmates and immediate juniors, who had by now, attained the rank of ADGP. Meanwhile the Selection Committee found the petitioner fit for promotion to the Special Inspector General and was appointed as Special IG of Police at State Human Rights Commission. The Tribunal was of the opinion that if fresh review DPC considers the petitioner fit for promotion, it will take effect from the date on which his junior officers were promoted to the said post. The Tribunal also took into consideration the petitioner’s letter dated 21/2/2014 about his juniors being promoted to the rank of ADGP. According to the Tribunal, the question of petitioner’s promotion to the post of ADGP would arise only on his promotion to the Special IGP. The Tribunal, directed the respondents to hold a fresh review DPC for considering the claim of the petitioner for promotion to the post of Inspector General of Police. The review filed by the petitioner came to be dismissed.
The petitioner contended that he had completed 25 years of regular service and therefore, not considering him for rank of ADGP and promoting his juniors over and above him is grossly unjust and pointed that minutes of the meeting of the DPC discloses that there was complete fraud and misrepresentation to deny rightful dues. The petitioner later was served with a notice stating that he was put on compulsory wait.
The writ petition was filed challenging the order of the tribunal in the original application, review petition and seeking to quash the order placing the petitioner on compulsory wait.
Senior Counsel NH Seervai, appearing for the petitioner assailed the order of the Tribunal on the grounds that the said order was passed in fragrant violation of principles of natural justice as no opportunity of hearing was afforded to the petitioner. The Counsel iterated that the minutes of the meeting were fabricated and that the order dated 15/02/2007 was cancelled almost after 9 years only with a view to deprive him of the benefits of appropriate deemed date as ADGP to which he was otherwise entitled. It was also stated that the petitioner after completing 25 years of service was eligible for promotion to the rank of ADGP. It was also further stated that the Respondent could not review its own order. Adv. Amit Borkar, Special Government Pleader along with Adv. O.M. Kulkarni argued that petitioner is required to challenge the order of compulsory wait before the Tribunal as laid down in L. Chandrakumar v. Union of India (1997) 3 SCC 261. He also relied upon Vinod Kumar Vs. State of Haryana and ors. (2013)16 SCC 293 to fortify the contention that the respondent was capable of reviewing its own orders.
The bench of Justices V.K.Tahilramani and M.S Karnik, stated that ends of justice would be met if the DPC is reconvened to consider the case of the petitioner for recommending his promotion as ADGP along with IPS officers who were junior to him on the footing that he was holding the post of Special IG with effect from 18/6/2008. The Court holding that the order was passed in violation of the principles of natural justice without affording an opportunity of hearing, held that
57. In our opinion, reopening the matter almost after 9 years is unjust, unreasonable and arbitrary thereby serious prejudice is caused to the petitioner. In compliance with the directions of the Tribunal and the High Court the order dated 15/02/2007 was passed granting extraordinary leave to the petitioner treating the period as on duty. In the facts of the present case, it was not permissible for the respondents to have reviewed the order dated 15/02/2007 after almost 9 years and that too in utter disregard to the principles of natural justice. The issue as regards treating the period of absence was already concluded by granting extraordinary leave and even the aspect regarding punishment for taking up private employment without the Competent Authority’s permission was closed by reprimanding the petitioner and therefore also it was not permissible for the respondents to have at this belated juncture treated the period of private employment of the petitioner as diesnon. As indicated earlier the order dated 29/10/2016 was passed in compliance of the Tribunal & Delhi High Court’s order. In the several rounds of litigation which followed after 2007, this issue was never raised and in fact as far back as in 2008 the respondents No. 1 to 3 were conscious that treating this period as diesnon will cause contempt of Court. Even in 2016, the respondents No.1 to 3 reiterated this position. It is apparent that the decision is taken by the respondents No.1 to 3 only upon the insistence of respondent No.4. The impugned order dated 29/10/2016 is therefore required to be quashed and set aside.
The Court further observed:
We are of the opinion that once the order of the Tribunal confirmed by the High Court is complied with and that to pursuant to filing of Contempt Petition, after acting upon the order, revoking the order unilaterally after 9 years is absolutely unjust and unfair to the petitioner. The high handed manner in which the order dated 15/02/2007 passed by the respondents No.1 to 3 themselves is sought to be revoked leads us to infer that the respondents are determined to rake up and reopen concluded issues only to somehow deprive the petitioner the benefits of the Tribunal’s order dated 01/03/2005.
As regards the issue whether the period of absence for having taken private employment should be taken as period spent on duty, the Court held that the department had already reprimanded him and had regularized the period of absence. The Court further directed the respondent to grant to the petitioner deemed date as Additional Director General of Police from 20/06/2012.
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