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Judgment
By Hon’ble Mr. Rajveer Singh Verma, Member (J) :-
The applicant was enlisted as Sub-Inspector (Executive) in Delhi Police on 27.07.1999 through the open competitive examination conducted by the Staff Selection Commission (SSC). He was posted in the Special Cell on 08.11.2012 and, while working at Ghazipur, was part of the team which apprehended the criminal Salli and his associates. Respondent No. 4, Shri Mukesh Kumar, was appointed as Sub-Inspector on 11.05.2005
The cases of the applicant and Respondent No. 4 for out-of-turn promotion (OTP) to the rank of Inspector (Exe.) under Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 (the Rules) were considered by the Incentive Committee on 01.02.2013 [and by the DPC on 02.02.2013]. By order dated 05.02.2013, Respondent No. 4 was promoted as Inspector (Exe.) on OTP basis against the vacancy of the year 2012-13. The applicant was promoted as Inspector (Exe.) on ad hoc basis w.e.f. 01.05.2013. By order dated 19.11.2015, the services of both the applicant and Respondent No. 4 were regularised in the rank of Inspector w.e.f. 11.12.2014, with Respondent No. 4 placed below the applicant. By order dated 08.12.2015, the applicant was regularised in the rank of Inspector (Exe.) w.e.f. 11.12.2014 with bottom seniority w.e.f. 15.04.2014.
The applicant submitted a representation dated 05.01.2016. The respondents rejected his claim by order dated 09.05.2016 (the impugned order). Aggrieved, the applicant has filed the present OA seeking the following reliefs:
"I. To quash and set aside the order dated 09.05.2016 and direct the respondents to grant the promotion to the post of Inspector to the applicant w.e.f. 05.02.2013, as has been granted to Sh. Mukesh Kumar alongwith all consequential benefits.
II. cost of proceedings may also be awarded to the applicant;
III. any other relief which this Hon'ble Tribunal may also be passed in favour of the applicant."
Learned counsel for the applicant contends that the impugned action is illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution. The DPC did not indicate which of the two officers was to be promoted, and the applicant, being senior, ought to have been promoted in place of Respondent No. 4 w.e.f. 05.02.2013. The applicant was appointed Sub-Inspector on 27.07.1999, whereas Respondent No. 4 was appointed as such in 2005.
It is further contended that the order dated 05.02.2013 shows that there was a vacancy for 2012-13 under the OTP quota, and the respondents themselves, by order dated 19.11.2015, regularised both officers from the same date i.e. 11.12.2014, keeping Respondent No. 4 below the applicant.
Reliance is placed on the judgment of the Hon'ble High Court of Delhi in W.P.(C) No. 2414/2012 and connected writ petitions.
The official respondents oppose the OA. They submit that the grounds taken in the representation dated 05.01.2016 differ from the prayer in the OA, and that the applicant never represented for the relief now claimed. They further submit that the challenge, in substance, is to the order dated 19.11.2015 (Annexure A/1) and is beyond the period of one year prescribed by the Administrative Tribunals Act, 1985.
On merits, the official respondents submit that the names of the applicant and Respondent No. 4 were considered by the Incentive Committee on 01.02.2013, which recommended Respondent No. 4 for OTP under Rule 19(ii), as such promotions are made on a first come first serve basis and the citation of Respondent No. 4 was received before that of the applicant. Since only one vacancy was available, the applicant could not be promoted. On availability of a vacancy, he was granted ad hoc promotion by notification dated 01.05.2013.
The official respondents further submit that, pursuant to directions in OA No. 2009/2013 (Vijender Singh & Ors. v. Govt. of NCT of Delhi & Ors.), Promotion List-F (Exe.) for 2013-14 was drawn up by notification dated 24.04.2014. As OTP promotees are placed at the bottom of the list, and the applicant was senior in the substantive rank, he was placed above Respondent No. 4 for the purpose of seniority. They also submit that the applicant was not heading the team which apprehended the criminals; he was a member of the team headed by Shri Ishwar Singh.
Learned counsel for Respondent No. 4, who was impleaded on an MA, submits that Respondent No. 4 was granted OTP in 2013 for extraordinary service and bravery shown on 19.01.2013 and was rightly promoted in accordance with the rules. It is submitted that the department placed the applicant above Respondent No. 4 in the seniority list, which the official respondents have not disputed, but that the failure to prepare the seniority list at the relevant time, owing to the pendency of the OA, has resulted in incorrect fixation of Respondent No. 4's seniority.
In rejoinder, the applicant submits that the respondents have admitted that he is senior to Respondent No. 4 in the substantive rank, and that denial of OTP to him w.e.f. 05.02.2013 is therefore unjustified.
We have heard learned counsel for the parties and perused the material on record.
The following points arise for determination:
whether the OA is barred by limitation or is not maintainable because the representation differs from the relief claimed;
whether the denial of OTP to the applicant, in preference to Respondent No. 4, is vitiated in law; and
what relief, if any, the applicant is entitled to.
On point (i), the official respondents contend that the applicant is in substance assailing the order dated 19.11.2015 beyond one year. We are not persuaded. The orders dated 19.11.2015 and 08.12.2015 fixed the applicant's date of regularisation and his seniority in the rank of Inspector (Exe.). It is through these orders that the consequence of the decision taken in February 2013 crystallised in terms of the applicant's position in the cadre. The applicant represented within weeks, on 05.01.2016, and the respondents considered and rejected his claim by the order dated 09.05.2016; they did not reject the representation as belated. The present OA, filed on 15.12.2016, is within one year of the order dated 09.05.2016, and within the period prescribed by Section 21 of the Administrative Tribunals Act, 1985.
Nor does the objection regarding the representation merit acceptance. The grievance in the representation and in the OA is the same, namely the applicant's promotion and seniority in the rank of Inspector (Exe.) vis-a-vis Respondent No. 4, and the respondents rejected his claim on that subject. The form in which a prayer is framed does not alter the substance of the grievance. Point (i) is answered against the official respondents.
Rule 19(ii) of the Rules, as reproduced by the Hon'ble Supreme Court in Govt. of NCT of Delhi and Ors. v. Ravinder Pal, Civil Appeal No. 6283/2015, decided on 04.03.2021 (para 3), reads:
"(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 promotees shall be placed at the bottom of the promotion list drawn up for that year."
The Rule rewards an individual act of exceptional gallantry and devotion to duty. It operates only where vacancies exist within the ceiling of 5%, and it requires the prior approval of the Administrator. Seniority in the feeder rank is not the criterion. That is the criterion under Rule 19(i), and the Hon'ble High Court of Delhi in Commissioner of Police and Ors. v. Sunil Kumar, W.P.(C) No. 2414/2012 and connected matters, decided on 06.05.2013, drew the distinction between the two sub-rules in the following terms (para 21):
"We give one more additional reason. If we look at sub Rule (i) of Rule 19 of the 'Delhi Police (Promotion & Confirmation) Rules,1980' we find that if no approved names are on the promotion lists and vacancies exist, as a special circumstance the Commissioner of Police may promote suitable officers in order of seniority to the next higher rank temporarily and these officers are not entitled to claim right for regular promotion or seniority. Meaning thereby, the Draftsman was conscious of temporary promotions and the consequence thereof as envisaged by sub Rule (i) and promotions with consequences thereof as envisaged by sub Rule (ii) of Rule 19 of the 'Delhi Police (Promotion & Confirmation) Rules,1980'."
It follows that the applicant cannot claim OTP merely because he is senior to Respondent No. 4 in the rank of Sub-Inspector.
The judgment in Sunil Kumar, on which the applicant relies, decided the year from which an OTP promotee's seniority is to be reckoned. The Hon'ble High Court held (para 17):
"Plain and simple English language guides us that in the promotion list drawn up for that year i.e. the year of promotion, the names of these subordinate officers have to be entered and for purposes of seniority to be placed at the bottom of the promotion list drawn up for that year, meaning thereby the year of the promotion and not any other year."
The Hon'ble Supreme Court affirmed this view in Ravinder Pal (supra), observing (para 9):
"This would, in turn, imply that the promotions are earned in the year when the vacancy accrued." The judgment governs where an OTP promotee is placed in seniority. It does not lay down that OTP is to follow seniority in the feeder rank, and it does not by itself support the applicant's claim to the vacancy given to Respondent No. 4.
An officer has a right to fair consideration for OTP, not a right to the promotion itself. The Hon'ble High Court of Delhi in Commissioner of Police and Ors. v. Harinder Singh, W.P.(C) No.6989/2017 with W.P.(C) No. 8060/2017, decided on 31.10.2023, held (para 17):
"Undoubtedly, an employee enjoys only a right for consideration and cannot claim promotion as a matter of right since the consideration remains within the domain of the Competent Authority in terms of Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980….. However, while considering the case of the applicants, the Competent Authority is mandated to act reasonably, fairly and in public interest." The Hon'ble High Court also noted the view of the Hon'ble Supreme Court on parity (para 15):
"15.….There is no dispute as to the observations of the Hon'ble Apex Court that the facts differ from person to person, officer to officer and act to act and as such in case of Out of Turn Promotion, there cannot be any parity as a matter of right…."
The decision of the competent authority is thus open to review on the ground that it rests on an irrelevant consideration or is arbitrary, but the Tribunal does not substitute its own assessment of the merit of the act.
On point (ii), the official respondents' own case (para 8 above) is that the Incentive Committee considered both names on 01.02.2013, that only one vacancy was available, and that Respondent No. 4 was recommended because OTP is granted on a first come first serve basis and his citation was received before that of the applicant. They further state that the applicant could not be promoted because only one vacancy was available. On the respondents' own showing, therefore, the applicant's case was not rejected on an assessment of the merit of his act. It was passed over because of the order in which the two citations reached headquarters.
No rule or standing order prescribing the date of receipt of a citation as the basis for choosing between officers under consideration for OTP has been placed before us. Rule 19(ii) is directed at rewarding exceptional gallantry and devotion to duty. The date on which a citation happens to reach headquarters bears no relation to the quality of the act it describes. Where two officers are under consideration against one vacancy, the competent authority is required to compare the merit of their respective acts. A choice made on the order of receipt of citations rests on a consideration irrelevant to the purpose of the Rule and fails the test of acting reasonably and fairly laid down in Harinder Singh (supra). To that extent, the decision to deny OTP to the applicant, and the impugned order dated 09.05.2016 which maintains it, cannot be sustained.
It does not follow, however, that the applicant is entitled to OTP w.e.f. 05.02.2013 by direction of this Tribunal. Whether the applicant's role was of a quality warranting OTP, including the respondents' contention that he was a member and not the head of the team led by Shri Ishwar Singh, is for the competent authority to assess on the material before it. The only vacancy for 2012-13, as stated by the respondents, was filled by Respondent No. 4, whose promotion is not under challenge. Rule 19(ii) further requires that vacancies exist within the 5 ceiling and that the prior approval of the Administrator be obtained. These are matters for the competent authority. The appropriate course is to remit the matter for fresh consideration, with directions as to the date from which OTP, if granted, is to take effect. Such a course was adopted by this Tribunal in HC Sukhbir Singh v. Govt. of NCT of Delhi & Ors., OA No. 2304/2010, decided on 18.01.2011, where the direction, as reproduced by the Hon'ble High Court of Delhi in Naresh Kumar Solanki v. Govt. of NCT of Delhi & Ors., W.P.(C) No. 2431/2024, decided on 25.09.2025 (para 5), was:
"Respondents are directed that the applicant be given OTP as ASI either w.e.f. 31.10.2005 or when the first vacancy under the OTP category became available, whichever is earlier."
We do not rest our conclusion on the placement of the applicant above Respondent No. 4 in Promotion List-F (Exe.) for 2013-14. That placement followed from the last sentence of Rule 19(ii), under which OTP promotees are placed at the bottom of the promotion list for the year, and is not an acceptance by the department that the applicant was entitled to the OTP vacancy. The contention of Respondent No. 4 that his own seniority has been incorrectly fixed is not the subject matter of this OA, and we express no opinion on it. While fixing the date and seniority in the applicant's case, the competent authority shall also bear in mind that a Sub-Inspector promoted as Inspector under Rule 19(ii) is not required to undergo any promotional course (Sunil Kumar, paras 11 and 20).
In view of the above, the Original Application is partly allowed with the following directions:
The impugned order dated 09.05.2016 is quashed and set aside.
The respondents shall place the applicant's case for out-of-turn promotion to the rank of Inspector (Exe.) under Rule 19(ii) of the Rules before the Incentive Committee for fresh consideration. The case shall be assessed on the merit of the applicant's act, with reference to the citation relating to the operation in which he participated, and keeping in view the case of Respondent No. 4 considered on 01.02.2013. The order in which the citations were received shall not be a ground for decision.
If the applicant is found fit, out-of-turn promotion shall be granted to him w.e.f. 05.02.2013 if a vacancy within the ceiling of 5% prescribed by Rule 19(ii) was available for that year; failing which, from the date on which the first vacancy under the OTP category in the rank of Inspector (Exe.) became available thereafter. The grant shall be subject to the prior approval of the Administrator as required by Rule 19(ii).
In that event, the applicant's seniority shall be fixed in terms of the last sentence of Rule 19(ii), as interpreted in Sunil Kumar (supra) and Ravinder Pal (supra). The promotion of Respondent No. 4 shall not be disturbed.
If out-of-turn promotion is granted, the applicant shall be entitled to all consequential benefits, including pay fixation and arrears of pay.
The respondents shall pass a reasoned and speaking order, and communicate it to the applicant, within twelve weeks from the date of receipt of a certified copy of this order. Any consequential benefits shall be released within eight weeks thereafter.
If aggrieved by the decision so taken, the applicant shall be at liberty to seek remedy in accordance with law.
Pending MAs, if any, shall stand disposed of. No order as to costs.