By Hon’ble Mrs. Pratima K. Gupta, Member (J):-

1. The facts that arrive for our consideration in the instant OA are that the applicant was appointed as Sub Inspector (Exe) in Delhi Police on 21.11.1991. Keeping in view his exceptional gallantry and devotion to duty, he was promoted (on ad hoc basis) as Inspector (Exe.) on out of turn basis under Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980 w.e.f. 02.11.1994. He was regularized w.e.f. 02.07.1997 by an order dated 24.01.2000 (Annexure-A/3). In the meanwhile, a Larger Bench of the Tribunal in its Order dated 24.03.2011 in OA No.2047/2006 and OA No.2612/2005 incorporated Rule 19(ii) of the Delhi Police (Promotion and Confirmation) Rules, 1980, whereby it was held that Rule 19(ii) implies that the officers promoted out of turn in any year shall be placed, for the purpose of seniority, at the bottom of promotion list of the year in which out of turn promotion is given. This decision by the Larger Bench of the Tribunal was thereafter challenged before the Hon’ble High Court of Delhi. The Hon’ble High Court did not interfere in the decision. Thereafter, the respondents preferred an SLP before the Hon’ble Apex Court. That was also dismissed. Accordingly, the decision of the Larger Bench dated 24.03.2011 stood confirmed. Thereafter, the applicant preferred a representation to the respondents to antedate his regularization in promotion to extend the benefit of the judgment in favour of the applicant. This representation has been rejected by the respondents by way of the impugned order. Aggrieved by the same, the applicant has preferred the instant OA seeking the following relief(s) :-

“i) quash and set aside the impugned order dated 9.10.2015 placed at Annexure A/1 and

ii) direct the respondents to regularise the out of turn promotion of the applicant w.e.f. the date when he was so promoted with all consequential benefits.

iii) Award costs of the proceedings and

iv) pass any order/relief/direction(s) as this Hon’ble Tribunal may deem fit and proper in the interests of justice in favour of the applicants.

2. The case of the applicant is that he should have been assigned seniority with effect from 1994 i.e. the year in which his promotion has been given effect to. Learned counsel has relied upon a judgment of the Hon'ble Apex Court in the case of GNCTD & Ors. vs. Ravinder Pal in Civil Appeal No.6283/2015. She draws attention to the rejoinder to additional affidavit filed on behalf of the applicant dated 20.03.2023, wherein a list of out of turn promotees has been given in a tabular form to establish that all the names contained in the said list had been given regular promotion which was preceded by ad-hoc promotion with effect from the year from which the adhoc promotion was extended in their favour. Drawing attention to the said list, she submits that the applicant's promotion has been regularised almost three years from the date of the ad-hoc out of turn promotion. She further submits that the respondents have taken a position that out of turn promotion is to be restricted to only 5%. She says that the fact that the applicant has been given this promotion in the year 1994 establishes that the quota of vacancies within this 5% out of turn promotion existed. However, the learned counsel argues that the order dated 17.02.1998 was further amended by making the promotion antedated w.e.f. 02.11.1994. The said promotion was granted on ad hoc basis and his promotion was against 5% quota,

3. Learned counsel for the applicant continuing the arguments, rebuts the contention of the respondents as expressed in the additional affidavit filed by them. The specific issue on which she rebuts the same is nonavailability of vacancies as one of the reasons adduced by the respondents for non-consideration of the claim of the applicant for out of turn promotion with effect from the date from which he is claiming the same. Learned counsel points out that this issue has been thrashed out in OA No. 1122/2016 vide order dated 30.05.2023 decided by this very Bench of the Tribunal comprising the present Members itself. She specifically draws attention to paras 7 and 8 of the said judgement which read as under:

“7. We are conscious that “out of turn promotion” cannot be granted as a matter of right. However, in the present facts the applicant has already been granted “out of turn promotion” thereby explicitly implying that the respondents have recognized the exemplary gallant act and extraordinary good work done by the applicant and his team mates. Their work was evaluated by the Incentive Committee on 14.12.2005 and after taking into consideration all the facts and circumstances of the case appreciating the extraordinary gallantry and brave act of the applicant, which was stated to be beyond the call of duty, he was granted out of turn promotion. All that the applicant is seeking is out of turn promotion from the date, that is, 21.12.2005, when his teammates were granted the out of turn promotion.

8. We have no doubt in our minds that the applicant has not only been discriminated against qua his teammates but his counterparts as well. The claim of the applicant is admitted by the respondents themselves but denied for want of vacancies. This reason cannot be sustained.”

4. She further submits that the issue of non-availability of vacancies does not find any mention in the counter reply and hence, the respondents cannot raise such an objection at such a belated stage.

5. In pursuance of notice, the respondents have filed their counter reply opposing the OA. Shri Amit Anand, learned counsel for the respondents, clarifies that certain things are obvious and apparent and need not be expressly stated. He states that promotion can only be made to a post which exists. Therefore, availability of vacancies is a sine qua non to appointment on promotion. He further clarifies that during the year 1994 Sub-Inspectors of the batches from 1975 to 1985 only were considered for promotion to the rank of Inspector whereas, the applicant was appointed as Sub-Inspector in the year 1991. He further clarifies that in accordance with the rules and instructions governing the subject of 'Out of Turn' promotion, the applicant has been promoted with effect from the date on which the person whose name figures in the end of the list of 1994 has been promoted. Thus, the applicant cannot allege any discrimination.

6. We have heard the learned counsel for the parties and gone through the material available on record.

7. The admitted facts in this OA are that the applicant was promoted on out of turn basis to the post of Inspector (Exe.) on 17.02.1998. This promotion was antedated w.e.f. 02.11.1994 vide second order dated 31.12.1999. The out of turn promotion of the applicant has been regularized w.e.f. 02.07.1997 by order dated 24.01.2000. However, the facts remain that the applicant did not discharge the functions and duties of the Inspector (Exe.) prior to 17.02.1998.

8. By virtue of the instant OA, the applicant seeks regularization of his out of turn promotion w.e.f. 02.11.1994 i.e. the date when he was so promoted with consequential benefits on the ground that no training is prescribed for the post of Inspector (Exe.). Therefore, his out of turn promotion to the post of Inspector (Exe.) ought to have been treated on regular basis w.e.f. 02.11.1994 itself and he should be extended the same along with all consequential benefits. The applicant has heavily relied upon the judgment of the Larger Bench dated 24.03.2011 in OA No.2047/2006 and batch, upheld by the Hon’ble High Court and thereafter confirmed by the Hon’ble Apex Court in the case of GNCTD & Ors Vs. Ravinder Pal Civil Appeal No.6283/2015, wherein the following has been held :-

"We are persuaded to take this view as a reading of the Rule 19, sub-Rule (ii) makes it clear that for purposes of seniority, they would be placed at the bottom of the promotion list drawn up for that year. This would, in turn, imply that the promotions are earned in the year when the vacancy accrued. They are given ad hoc promotions first because of certain special circumstances i.e. for an act of bravery, gallantry and devotion to duty. How the seniority would be reckoned would be clarified from the last portion of the Rule which provides that for purposes of seniority, such Item No. 26 O.A. No. 1230/2015 promotees shall be placed at the bottom of the promotion list drawn up for that year. Thus, the High Court was correct opining in para 17 of the impugned order that the plain and simple English language should guide that in the promotion list drawn up that year i.e. the year of promotion, the names of the subordinate officers have to be entered and for the purposes of seniority to be so placed at the bottom of the promotion list drawn up for that year which, in turn, would imply that the year of the promotion and not any other year.

We may also take note of the additional reason given by the High Court in para 21 of the impugned order. The said paragraph reads as under:-

"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."

The aforesaid is a supporting factor in interpretation of the Rule in the manner done by the five Judges Bench of the Tribunal and the High Court with which we concur.

The result of the aforesaid is that the appeals are dismissed leaving the parties to bear their own costs.

At request of some of the counsel for the respondent(s), we clarify that if there was any interim orders in some cases, that would stand dissolved and the consequences of the judgment passed 5 by us should be implemented by the appellants, if not already implemented, within a maximum period of two months from today."

9. The applicant has placed challenge to the impugned order and sought regularization on out of turn basis with effect from the date on which he was so promoted. It is his case that the out of turn promotion granted to him in fact is as good as getting the same nullified if the applicant is not regularized from 02.11.1994. We find that in the impugned order dated 09.10.2015, the respondents have categorically mentioned that the applicant has been placed at the bottom of promotion list for the year 1994 and granted consequential seniority from the same year. The impugned order dated 09.10.2015 reads as under :-

“The representation dated 14.09.2015 submitted by Inspector (Exc.) Rajbir Singh Malik, No. D-I/309 for fixation of his seniority in the rank of Inspector by extending the benefit of judgement dated 06.05.2013.delivered. by the Hon'ble High Court of Delhi in CWP No.6626/2011- Commissioner of Police, Delhi Vs. Brahmjeet Singh & Ors. has been considered in this Hdqrs. It has been found that the representationist was granted out turn promotion in the rank of Inspr. (Exe ) on adhoc basis under Rule-19(ii) of Delhi Police (Promotion & Confirmation) Rules 1980 w.e.f 22.11994 and his seniority was fixed in the bottom of Promotion List-F (Exe.) dated 12.08.1994,

It has also been found that the Hon'ble CAT vide common judgement dated 10.06.2011 in O.A. No. 2612/2005- Brahmjeet Singh Vs. UOI & ors. and in another similar OA directed to fix the applicants’ seniority with reference to the year in which they have been given out of turn promotion by placing their names at the bottom of the respective promotion lists of the year in which out of turn promotion has actually been given to them. The said order of the Hon'ble CAT has also been upheld by the Hon'ble High Court of Delhi vide its judgement dated 06.05.2013 in CWP No. 6626/2011 - Commissioner of Police, Delhi Vs. Brahnıjeet Singh & Ors. and the same has been challenged by the department in the Hon'ble Suprene Court of India in SLP No. 11470/2014.

Inspector (Exe.) Rajbir Singh Maiik, No. DI/309 was granted out of turn promotion in the rank of Inspr. (Exe.) on adhoc basis under Rule-19(ii) of Delhi Police (Promotion & Confirmation) Rules, 1980 w.e.f. 22.11.1994 and his seniority was fixed by placing his name in the bottom of Promotion List-F (Exe.) dated 12.08.1994 i.e. in the same year in which he had been granted out of turn promotion which is already in consonance with the judgement dated 10.06.2011 delivered by the Hon'ble CAT duly upheld by Hon'ble High Court of Delhi vide its judgement dated 06.05.2013, referred to above. This also dispose off his earlier representation dated 11.04.2014 received in this Hdqrs. vide U.O. No.9315/Estt. Br. (DAI/Sec., dated 16.04.2014.

The Inspector may be informed accordingly.”

10. In our considered view, there is no ambiguity in the impugned order in terms of the interpretation of the judgement of Larger Bench of this Tribunal upheld by the Hon’ble Apex Court. The officers promoted in any year shall be placed for the purpose of seniority at the bottom of the promotion list of the year, in which out of turn promotion is given and precisely, the same has been done with respect to the applicant. The applicant, according to us, has already been extended the relief in terms of the Larger Bench decision of this Tribunal. It is not in dispute that the applicant has been rewarded for his exceptional contribution in the Force. He is aggrieved that though he has been promoted, his promotion has not been regularized from the due date and, therefore, he has not been benefitted from the out of turn promotion extended to him. We do not see any factual or legal inaccuracy in the said order. It is for the applicant to demonstrate the reasons given in the impugned order which are factually or legally incorrect so as to claim the relief.

11. The applicant has further sought priority with some of the cases like Shri Brahamjeet Singh, Baney Singh, Taranpal Singh etc., however, no specific facts regarding what was their date of out of turn promotion, the date with effect from which they were given out of turn promotion, when their date of promotion was regularized, how their seniority was fixed, what was their claim before the Tribunal and what relief was granted etc., have been mentioned in this OA.

12. In view of there being no specific facts qua those cases and how the facts of the relied upon cases are materially similar to the facts of the present case, we are not able to appreciate the contention of the applicant with respect to the similarity and parity with those cases. We are of the considered view that had the applicant not been given promotion even on ad hoc basis, he would not have been on the rolls of the rank of Inspector (Exe.) in the year 1994 because his inception in the Delhi Police was in the year 1991.

13. For the reasons, recorded hereinabove, the claim of the applicant seeking regularization from 02.11.1994 is misplaced. We have no hesitation to hold that no case has been made out so as to warrant interference in the impugned order. Accordingly, the OA is dismissed.

14. There shall be no order as to costs.