delhihighcourt

COMMISSIONER OF POLICE, DELHI vs BRIJESH MOOLVANSHI & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 12.02.2024

+ W.P.(C) 6293/2022 & CM APPL. 18965/2022 -Stay.

COMMISSIONER OF POLICE, DELHI ….. Petitioner
Through: Ms.Avnish Ahlawat, SC, GNCTD with Ms.Laavanya Kaushik, Ms.Tania Mr.N.K.Singh, Ms.Aliza Alam & Mr.Mohnish Sehrawat, Advs.
versus
BRIJESH MOOLVANSHI & ORS. ….. Respondents

Through: Mr.S.Sunil, Adv. for R-1.
Mr.Anil Singal, Adv.
Mr.Raj Kumar Yadav, SPC with Mr.Amit Acharya, Adv. for R-3.
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR

REKHA PALLI, J (ORAL)
1. The present writ petition under Articles 226 & 227 of the Constitution of India seeks to assail the order dated 20.10.2021 passed by the learned Central Administrative Tribunal (Tribunal) in O.A. No.1810/2015. Vide the impugned order, the learned Tribunal has, by relying on its earlier decision dated 16.03.2011 passed in O.A. No.471/2009 titled HC (Ex.) Irshad vs. Union of India & Ors., set aside the petitioner’s order dated 16.07.2013.
2. The petitioners issued an advertisement for holding a combined Graduate Level Examination in 2004 (hereinafter referred to as CGLE, 2004) for recruitment to the post of Sub Inspector (Executive) in Delhi Police. As per Rule 7 of the Delhi Police (Appointment and Recruitment) Rules, 1980, the said posts were to be filled, 50% by way of promotion and 50% by way of direct recruitment with a further provision that out of the 50% posts to be filled by direct recruitment, 10% would be filled by limited departmental competitive exam from amongst Constables, Head Constables and Sub Inspectors with minimum 5 years of service.
3. The two respondents, who were working as Head Constable and Constable respectively, appeared in the limited departmental competitive exam but upon declaration of results, they realized that only 59 vacancies were being filled by way of direct recruitment. They, therefore, sought information under the Right to Information Act (RTI) and learnt that as on 01.01.2004, there were 458 vacancies of Sub Inspector (Executive) and therefore, 50% of the said vacancies i.e. 229 vacancies were required to be filled through direct recruitment with 229 vacancies being allocated to be filled up through limited departmental competitive exam.
4. Being aggrieved, one of the affected party, namely, HC (Ex.) Irshad approached the learned Tribunal by way of O.A. No. 471/2009, which came to be allowed on 16.03.2011, with directions to the petitioners to re-calculate the vacancies in the 10% departmental quota strictly as per Rule 7 by clarifying that the same had to be done by taking into account the vacancy position as existing on 01.01.2004 as against the post position. This decision of the learned Tribunal was unsuccessfully assailed before this Court by way of W.P.(C) 5592/2011 and therefore, the petitioners passed an order on 16.07.2013 in purported compliance of the learned Tribunal’s order dated 16.03.2011.
5. Being aggrieved, the respondents again approached the learned Tribunal which has allowed their O.A. vide the impugned order by holding that once the order dated 16.03.2011 had attained finality, the petitioners were required to recalculate the vacancies of SI (Executive) as on 01.01.2004 by taking into account the vacancy position and not the post position and grant notional benefit of their seniority to the respondents from the due date in case, they were found eligible.
6. It is in these circumstances that the petitioner has approached this Court by way of the present petition. In support of the petition, learned counsel for the petitioner reiterates the submissions made before the learned Tribunal and contends that the petitioner was justified in calculating the vacancies as per the post-based roster instead of the vacancy-based roster. By placing reliance on the DoPT’s O.M dated 02.07.1997, she contends that the said O.M made it clear that the reservation of job for backward classes, i.e., SC, ST, OBC, should be made according to the number of posts and not according to the vacancies. She, therefore, prays that the petitioners were justified in calculating the vacancies on post-based roster. She therefore, prays that the impugned order be set aside.
7. On the other hand, learned counsel for the respondents supports the impugned order and submits that the action of the petitioner in calculating the number of vacancies on the basis of post-based roster instead of vacancy based roaster was contrary not only to the directions issued by the learned Tribunal in HC (Ex.) Irshad (supra) but also to the order passed by this Court in W.P.(C) No. 5592/2011, whereby this Court had directed the petitioners to mathematically apply the legal principle laid down by the learned Tribunal. They, therefore, pray that the writ petition be dismissed.
8. In order to appreciate the rival submissions of the learned counsel for the parties, we may begin by referring to para 12 of the order dated 16.03.2011 passed by the learned Tribunal in O.A.No.471/2009 titled HC (Ex.) Irshad (supra), which reads as under:-
“12. Considering the totality of facts and circumstances of the case, guided by the judicial precedents, and the statutory Rule in the subject, we are of the considered view that the Respondents having not calculated the vacancies of SI (Exe) Male, the vacancy position for the promotes has been advantageous and for the direct recruits it has been disadvantage. Taking note of the promotions already granted by the Respondents, we do not want to disturb such promotions already held. However, we come to the firm conclusion that persons competing in the direct recruitment stream including 10% departmental candidates have been prejudiced. We, therefore, direct the Respondents to recalculate the vacancies in the 10% departmental quota, as per the Rule 7 and thereafter consider the case of the applicant subject to his eligibility, suitability and the marks obtained by him in the examination for the year 2004. In case, he is found suitable and gets selected for appointment to the post of SI (Exe) male, the same shall be given effect to prospectively. Respondents are directed to complete the above exercise within 9 weeks from the date of receipt of a certified copy of this order”

9. Since, this order was unsuccessfully assailed before this Court, we may, at this stage, also refer to para nos. 10 to 12 of the order dated 23.05.2013 passed by the Division Bench in W.P.(C) 5592/2011. The same read as under:
“10. The view taken by the Tribunal in the impugned decision is that since there is no clarity with reference to the manner in which the reduction has been worked out, the Commissioner of Police has been directed to work out the reduction and spread the same evenly in the 50% promote quota, 40% direct recruitment quota and 10% quota pertaining to the Limited Departmental Competitive Test.

11. We see no reason why the writ petitions have been filed; for the reason on the principle of law i.e. the effect of reduction in the number of posts of Sub-Inspector and the same being required to be spread out evenly in the three quotas, there is no dispute. Mathematical working thereof needs to be reflected in a tabular form and applied. The decision of the Tribunal only warrants a mathematical application to the agreed legal principle.

12. Since, as noted hereinabove, the picture is not emerging with clarity as to what were the exact number of posts which were abolished and in what manner the consequential spread out of the reduction was worked out, we dispose of the writ petitions affirming the declaration of law by the Tribunal; on which neither party is in dispute. The Commissioner of Police shall work out, with clarity, by indicating in a tabular form the number of posts of Sub Inspector (Executive) Male abolished and is consequential impact on the promote quota, direct recruitment quota and LDCE quota for making promotions.”

10. From the aforesaid, it is evident that vide the impugned order, the learned Tribunal has merely reiterated the directions issued in HC (Ex.) Irshad (supra). Once, it is an undisputed position before us that the order passed by the Tribunal has attained finality with this Court on 23.05.2013 reiterating that the vacancies of SI (Executive) in terms of para 7 of the Rules were required to be determined on the vacancy-based roster and not on the post-based roster, the petitioners cannot now be permitted to reargue that the vacancies for the aforesaid post were to be determined on the basis of the post-based roster. In our view, the learned Tribunal was justified in quashing the order dated 16.07.2011 passed by the petitioners and directing them to once again recalculate the vacancies on the basis of the vacancy based roster as directed in HC (Ex.) Irshad (supra).
11. We have also considered the petitioner’s plea that as per the DoPT’s OM dated 02.07.1997, a post-based roster is required to be maintained for reservation for jobs for backward classes. We are, however, of the opinion that this OM would not be applicable to the facts of the case as it is Rule 7 which will prevail and therefore, as already directed by the learned Tribunal in HC (Ex.) Irshad (supra), the vacancies of SI (Executive) as on 01.01.2004 were required to be worked out on the basis of the vacancy based roster.
12. In the light of the aforesaid, we find absolutely no merit in the petition, which is accordingly, dismissed. As prayed for, the petitioner is granted six weeks’ time to comply with the directions issued in the impugned order.

(REKHA PALLI)
JUDGE

(RAJNISH BHATNAGAR)
JUDGE
FEBRUARY 12, 2024/kk

W.P.(C) 6293/2022 Page 6 of 6