Central Administrative Tribunal Principal Bench OA No.4387/2011 New Delhi, this the 21st day of November, 2012 Honble Mr. George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A) SI (Exe) Dharamveer Gautam S/o late Shri Ramdev Gautam R/o H.No. B-432-A, Sector-19 Noida, UP . Applicant (Through Shri R.K. Jain, Advocate) VERSUS

1. The Govt. of N.C.T. of Delhi Through the Commissioner of Police, Police Headquarter,

I.P.Estate, New Delhi.

2. The Joint Commissioner of Police (HQ), Police Headquarter,

I.P.Estate, New Delhi.  Respondents (Through Shri Amit Anand, Advocate) Order Mrs. Manjulika Gautam, Member (A) The applicant is working as Sub Inspector (Executive) since 9.07.1990. On the basis of a departmental inquiry initiated on 17.07.1998, the applicant was awarded the punishment of forfeiture of two years approved service permanently for a period of two years entailing proportionate reduction in his pay and that he will not earn increments during the period of reduction and on the expiry of this period the reduction will have the effect of postponing his future increments. The punishment order was passed on 30.05.2000 (Annexure A-4). The applicant made an appeal which was rejected by the appellate authority on 12.06.2003. The applicant filed OA No.1553/2004 challenging the orders of the disciplinary authority as well as the appellate authority. Vide orders dated 4.02.2005, the Tribunal set aside the impugned orders on the limited ground that the penalty awarded was in violation of Rule 8 (i) of the Delhi Police (Punishment and Appeal) Rules 1980 and directed that the disciplinary authority, if deemed appropriate, may pass a fresh order. The disciplinary authority vide order dated 13.04.2005 awarded the punishment of forfeiture of two years approved service permanently for a period of two years entailing proportionate reduction in his pay (Annexure A-6). The appeal of the applicant was also rejected vide orders dated 29.06.2006. The applicant challenged the above orders by filing OA No.2452/2006. The OA was dismissed by the Tribunal vide orders dated 25.03.2008. The applicant filed WP ) No.7447/2008 in the Honble High Court of Delhi and the same is still pending. Meanwhile, in the year 2007, the applicant had become eligible for consideration for promotion to List `F as per relevant rules. The applicant had been declared unfit for promotion to List `F for the years 2008, 2009 and 2010. In the year 2010, a Standing Order No.378/2010 was issued whereby broad guidelines/criteria to be adopted by the DPCs for various promotion lists were laid down by the respondents. According to para 4 of the aforesaid Standing Order, all punishments awarded during the period of ten years preceding the year the DPC was held, should have been considered and since the applicant had been awarded punishment vide orders dated 30.05.2000, the same could not have been taken into consideration. The applicant had also been awarded three censures dated 11.12.2003, 12.05.2004 and 23.07.2004. On the basis of these censures, he had six adverse points and due to major penalty awarded on 13.04.2005 which carried six adverse points, he had total number of twelve adverse points. Therefore, he was found unfit for promotion with effect from 24.05.2011 on the plea that he had more than ten adverse points. The applicant made a representation to the respondents stating that the effect of major punishment should be with effect from 31.07.1996 i.e. from the date of incident or from 30.05.2000, the date of the order of punishment. This representation was rejected vide orders dated 18.08.2011 (Annexure A-2). The stand taken by the respondents in their order is that the punishment order dated 30.05.2000 was quashed by the Tribunal vide order dated 4.02.2005 in OA No.1553/2004. Therefore, the currency of punishment dated 30.05.2000 ceased immediately after pronouncement of the judgment. The punishment order dated 13.04.2005 was a fresh punishment order and therefore, its currency was reckoned by the DPC from the date of award of punishment i.e. 13.04.2005.

2. It is the contention of the applicant that initially the punishment to him had been awarded on 30.05.2000 and subsequent punishment order dated 13.04.2005 was passed in pursuance of the Tribunals direction and hence, the punishment order dated 13.04.2005 should relate back to the earlier order dated 30.05.2000. Accordingly, the present OA has been filed seeking the following reliefs: I. to quash and set aside the order dated 28.5.2011 vide which the applicant had been declared unfit for promotion to List F and order dated 18.8.2011, the representation of the applicant has been rejected. to direct the respondents to promote the applicant to list F (exe) w.e.f. 24.5.2011 alongwith all consequential benefits. cost of the proceedings may also be awarded to the applicant.

3. In the counter affidavit filed by the respondents, it has been stated that the applicant was appointed as Sub Inspector (Exe.) on 9.07.1990. He was not confirmed along with his batchmates on account of pending departmental inquiry against him. Subsequent to his confirmation in the rank vide order dated 3.03.2010, review DPC was held on 7.07.2010 to consider the name of the applicant for admission to Promotion List `F with effect from 30.11.2007, 16.09.2008, 13.01.2009, 14.09.2009 and 19.01.2010. The review DPC, after assessment of his service record and ACRs, had graded the applicant unfit for promotion due to his indifferent service record. The regular DPC dated 29.07.2010 also considered the name of the applicant for admission to promotion list `F but graded him unfit. The applicant has not challenged any of these recommendations but has only challenged the recommendations of the DPC dated 24.05.2011 which graded him unfit with effect from the same date. Various criteria is adopted for making selection, in particular, disciplinary proceedings resulting in award of major/minor punishments and other punishments during the preceding ten years in a particular rank shall also be taken into account to assess the overall performance of a candidate. If an officer on the basis of his record of punishment gets more than ten adverse points, he shall not be empanelled in that particular year. For calculating ten adverse points, each major punishment with corruption/moral turpitude would carry six points, other major punishments would carry four points and each censure would carry two points. After due consideration of the service record of the applicant, he was not found fit as he got more than ten adverse points. According to the respondents, as per Standing Order No.378/2009, the date of award of punishment is considered the date from which the currency of punishment is required to be reckoned irrespective of the date of misconduct or default. The punishment order dated 30.05.2000 was quashed by the Tribunal vide order dated 4.02.2005 and, therefore, the currency of punishment dated 30.05.2000 ceased immediately after pronouncement of order by the Tribunal. Besides, the punishment order dated 13.04.2005 was a fresh punishment order issued by the disciplinary authority and not a modified punishment order. Hence its currency was reckoned by the DPC from the date of award of punishment i.e. 13.04.2005. In view of the same, the representation of the applicant was rejected.

4. We have heard both the learned counsel and perused the record on file.

5. It is accepted fact that punishment order of the applicant dated 30.05.2000 was quashed by the order of the Tribunal dated 4.02.2005 in OA 1553/2004. Fresh punishment orders dated 13.04.2005 were issued by the disciplinary authority. The applicant filed OA No.2452/2006 but the same was dismissed by the Tribunal and thus the punishment order dated 13.04.2005 remained in operation. It is also observed by us that the punishment order dated 30.05.2000 remained in operation from the date of its issue till the judgment of the Tribunal dated 4.02.2005 i.e. for a period of about five years. Therefore, it cannot be said that the punishment order ceased to exist and that only the subsequent orders dated 13.04.2005 were in currency. It is also observed by us that in the review DPC held on 7.07.2010, the applicant was found unfit for promotion with effect from 30.11.2007, 16.09.2008, 13.01.2009, 14.09.2009 and 19.01.2010. Since the review DPC was held in the year 2007 and the first punishment orders were issued on 30.05.2000 i.e. within a period of ten years, therefore, the findings have not been challenged by the applicant. But in the present OA, the applicant has challenged the DPC dated 24.05.2011 because according to him, he had been punished vide orders dated 30.05.2000 and, therefore, the punishment order was beyond the period of ten years. What is relevant in this OA is the date of currency of the order of punishment. As per the record, the punishment order dated 30.05.2000 was quashed only vide orders dated 4.02.2005 and, therefore, it remained in existence till the judgment of the Tribunal. Fresh orders were issued on 13.04.2005. Therefore, the respondents are calculating the currency of punishment with effect from 13.04.2005.

6. We are of the opinion that in the review DPC held on 7.07.2010, the respondents had rightly found the applicant unfit as he had three censures as well as one major punishment dated 30.05.2000. Therefore, the applicant was rightly denied promotion. But when his case was again considered for promotion in the DPC dated 24.05.2011, major punishments given during ten years preceding the date of DPC were to be looked at. Technically, the punishment order dated 30.05.2000 remained in operation till its quashing on 4.02.2005. The initial punishment order dated 30.05.2000 was quashed and set aside only on the technical ground of violation of Rule 8 (i) of the Delhi Police (Punishment and Appeal) Rules and not on merits. Fresh orders were issued on 13.04.2005. We are, therefore, of the opinion that the punishment order dated 30.05.2000 was in existence until it was quashed on technical grounds and replaced by fresh orders dated 13.04.2005. Therefore, the currency of punishment should be reckoned with effect from 30.05.2000. We are of the view that when the applicants case was considered in the DPC held on 24.05.2011, the punishment order dated 30.05.2000 could not have been taken into consideration as it was beyond the prescribed period of ten years. Also on the basis of that order, the applicant had already been denied promotions in earlier years.

7. We accordingly allow the OA and direct the respondents to hold a review DPC for the applicant with effect from 24.05.2011 not taking into consideration the punishment orders dated 30.05.2000 and subsequent orders dated 13.04.2005. If found fit, the applicant may be granted all consequential benefits arising out of promotion. This exercise may be completed within a period of two months from the date of receipt of a copy of this order. No costs. ( Manjulika Gautam ) ( George Paracken ) Member (A) Member (J) /dkm/