ORDER
V.K. Bali, J. (Chairman)
1. Durgesh Kumar, the applicant herein, was appointed as Constable in Delhi Police on 3.10.1988 and was promoted to the post of Head Constable on 10.6.1990. He has since already undergone training essentially required for promotion to the post of Assistant Sub Inspector (in short, ASI) and was awaiting promotion to the said rank when pursuant to show cause notice dated 22.2.2006, vide order dated 16.6.2006 he has been reverted to the post of Constable. Whether in the facts and circumstances of the case, reversion of the applicant to the post of Constable after 16 years of his promotion to the post of Head Constable, awaiting promotion to the next higher post of ASI is justified, is the question. In order to determine the controversy, it would be necessary to give the backdrop of the events culminating into filing of the present Application.
2. Applicant was appointed as Constable on 3.10.1980 as an OBC candidate. The positive case of the applicant is that while submitting the application form for recruitment in Delhi Police, he had submitted an OBC certificate issued by the Additional District Magistrate, Ghaziabad (Annexure A-3). He appeared in the promotional examination of List ‘A’ in 1987, and after passing the said test he was sent to Police Training School, Jharoda Kalan, New Delhi. He successfully completed the lower school course and that being so, his name was brought on list ‘B’ vide order dated 10.6.1990 and he was promoted to the rank of Head Constable with effect from the same date. A decade thereafter, i.e., on 20.7.2001, the Additional Commissioner of Police (Estt.) sought for service particulars in respect of Head Constables including the applicant for admission of their names to promotion list ‘D-1’ (Executive) along with proforma on which the particulars of the candidates were to be filled in. The Joint Commissioner of Police, Headquarters, sent a letter dated 8.10.2001 in which it was mentioned that on scrutiny of service particulars of Head Constables (Exe.), certain discrepancies had been detected. In the said list, name of the applicant finds place at serial No. 246 with serial No. 2135 against which it has been mentioned, Caste category shown as ‘S/C’ in the seniority list supplied by your branch, but as per caste certificate appended in the Character Roll H.C. belongs to ‘Gaderia’ O.B.C., which is required to be clarified. That being so, the Deputy Commissioner of Police, IGI Airport, New Delhi, sent a letter dated 29.10.2001 addressed to the Joint Commissioner of Police, Headquarters, for clarification of caste of the applicant. In response to letter dated 29.10.2001, the Deputy Commissioner of Police, N.E. District, vide letter dated 31.10.2001 directed the applicant to report in S.I.P. Branch for clarification of his caste certificate. In response to letter aforesaid, the applicant clarified that he belonged to OBC being ‘Gadaria’, and that from the stage of recruitment to the stage of clarification sought for by the department in connection with his caste/category, he had always stated his caste as Gadaria which would be covered by OBC category. However, the matter remained where it was, and meanwhile, name of the applicant was brought on list D-1 (Exe.) vide notification dated 7.8.2005 w.e.f. 31.8.2005 in terms of Rule 15(1) of the Delhi Police (Promotion & Confirmation) Rules, 1980. Name of the applicant figures at serial No. 194 as a general category candidate. It is from this list that the promotions were to be made on the post of ASI. The list was circulated vide communication dated 2.12.2005 and the applicant and other Head Constables were put to medical examination and training in Intermediate School Course. The applicant thereafter was sent for Intermediate School Course and he passed the said course and was aspiring as also awaiting his name to be brought on promotion list D-II for promotion to the rank of ASI (Exe.), when, all of a sudden, he received a show cause notice dated 22.2.2006 stating therein as to why the order regarding admission of his name to promotion lists ‘A’ and ‘B’ (Exe.) and promotion as Head Constable be not cancelled and he be not reverted to his substantive rank of Constable with immediate effect as per provisions contained in FR 31-A. The applicant, constrained under the circumstances, filed OA No. 1338/2006 in this Tribunal, but inasmuch as, his representation against the show cause notice was not considered favourably and the show cause notice aforesaid had been confirmed vide orders dated 12.6.2006, he withdrew the OA aforesaid with liberty to file a fresh one challenging order dated 12.6.2006. The permission was accorded and the applicant has now filed the present Application challenging the show cause notice dated 22.2.2006 (Annexure A-1) and the order dated 12.6.2006 (Annexure A-2) seeking issuance of a writ in the nature of certiorari. The applicant also seeks all consequential benefits that may accrue to him on account of setting aside of the show cause notice dated 22.2.2006 and the order dated 12.6.2006.
3. The case of the applicant is that while filling his application form for recruitment, he had clearly mentioned his caste as ‘Gadaria’ which would be covered under OBC. At no given time he had made any misrepresentation with regard to his caste. Mistake, if any, was on the part of the respondents in showing him as belonging to ST in the first instance, and later as SC. For the fault of the respondents, it is urged, the applicant cannot be visited with such consequences that may totally ruin his career.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. In the context that the broad facts as mentioned in the Application have not been disputed, we may make a mention of pleadings only dealing with grounds of contest.
5. It is pleaded in the counter reply that the name of the applicant was brought on promotion list ‘A’ at serial No. 1234 under ST category vide Headquarters order dated 13.11.1987. In this list the category was clearly shown as ST against the name of the applicant. The same order was endorsed by the DCP/Security vide office endorsement dated 13.11.1987 in which also he was shown as belonging to ST category. All the selected Constables including the applicant were thereafter sent for lower school course. After successful completion of lower school course and having passed the same, names of Constables including the applicant were brought on list ‘B’ vide Headquarters notification dated 19.6.1990, and in this list as well, the name of the applicant figured at serial No. 214 and the same was endorsed by DCP/South District vide endorsement dated 22.6.1990 for information of all Constables (Exe.) posted in his District. Thereafter, the Constables including the applicant were promoted to officiate as Head Constables (Exe.) vide notification dated 19.6.1990. In this order, the name of applicant stood at serial No. 214 and the same was endorsed by DCP/South District vide his office endorsement dated 22.6.1990 for information of all Constables (Exe.) posted in his District. The name of the applicant in all these orders/letters/ communications was clearly shown as ST/SC, and as such, he was very much aware that he had qualified list ‘A’ test under ST category and further promoted under ST/SC category.
6. Shri Ajesh Luthra, learned Counsel representing the respondents, while admitting the broad facts of the case, would still oppose the cause of the applicant on the sole ground that even though, initially it was the mistake of the department in showing the caste of the applicant as ST, but the applicant was aware of the fact all through that his caste had been wrongly shown as ST whereas he ought to have been shown as an OBC candidate, who would be treated at par with general category candidates. In the manner aforesaid, had the caste of the applicant been correctly shown, he would not have been promoted to the post of Head Constable, as the last candidate who made it in the general category, had secured far more marks than those of the applicant. The learned Counsel also relied upon FR 31-A in opposing the cause of the applicant.
7. We have heard the learned Counsel representing the parties and with their assistance, examined the records of the case.
8. What clearly emerges from the pleadings of the parties, as mentioned above, is that even though at no given time the applicant had made any misrepresentation with regard to his caste, and right from the stage of filling in the application form for appointment to the post of Constable, he had mentioned that he was ‘Gadaria’ by caste and would fall in the category of OBC, but it is equally true that in the first relevant list that came to be notified, he was shown as an ST candidate, whereas in all other lists up to 2001 he was shown as a candidate belonging to SC. It is only after the clarification sought for in 2001 that he has been shown as belonging to general category. It is not the case of the applicant that the caste ‘Gadaria’ would be covered under ST or SC category. The applicant admits that at the most the caste ‘Gadaria’ would be covered under OBC category. In the wake of undisputed facts as detailed above, we are in a position to return a definite finding that whereas the applicant at no given time misrepresented with regard to his caste, and the mistake was made by the respondents only, the applicant nonetheless kept quiet over the issue for all these years. The contention of the learned Counsel representing the applicant that the applicant has suffered due to fault exclusively attributable to the respondents, in the facts and circumstances, cannot be accepted, even though the situation is such that needs to be dealt with by keeping into consideration the stark fact that if the respondents might have corrected their mistake at a reasonable time after promotion of the applicant as Head Constable, the applicant could well appear in the later tests which were admittedly held in 1998, 1999 and 2001. The applicant is at such crossroads because of the mistake made by the respondents that he cannot possibly be restored to his original position, and if the impugned orders are upheld, his whole career would be ruined. In the circumstances as mentioned above, an equitable solution to the problem has to be found out.
9. Before we may, however, take into hand the said exercise, we may deal with two decisions relied upon by the counsel representing the applicant in support of his contention that when the mistake may be attributable exclusively to the employer and the employee may be in such a situation that he cannot be reverted to his original position, the benefit that might have accrued to the employee on account of the fault of the employer, has to be ignored and the desired relief has to be accorded to the employee. The first reliance of the learned Counsel is upon a judgment of this Tribunal in OA No. 2031/2006 in the matter of Laxman Singh Bisht v. Union of India and Ors. decided on 5.6.2007. Brief facts of that case would reveal that the applicant therein had joined the respondents as a Group ‘D’ employee in 1991 and was thereafter promoted as Lower Division Clerk (LDC) on ad hoc basis w.e.f. 25.4.1996. He was later regularised in the cadre of LDC w.e.f. 16.2.2001. The post of LDC had since been re-designated as Tax Assistant. The next promotion from LDC was to the post of Upper Division clerk (UDC), since re-designated as STA. Essential qualification for being considered for promotion to the post of UDC/STA was passing the departmental examination in terms of the examination rules of 1998. The applicant appeared in the departmental examination for UDC held in May, 2000 and was declared to have passed the examination in the result announced on 20.12.2000. His pay was also accordingly re-fixed by giving him two advance increments for passing the examination, vide order dated 13.2.2001. He was subsequently regularised on the post of LDC w.e.f. 22.6.2001. Vide impugned order dated 8.8.2006, juniors of the applicant were promoted on ad hoc basis as STA, whereas he was not considered for the said promotion. It was in the wake of circumstances mentioned above that he filed the OA aforesaid and prayed for promotion from the date his juniors were promoted. The matter was contested by the respondents on the only ground that essential condition of eligibility for promotion to the post of STA was qualifying in the departmental examination besides fulfilling other conditions. The applicant was promoted as LDC on ad hoc basis and continued as such till 15.2.2001, and, therefore, he did not fulfill the eligibility criteria for appearing in the departmental examination in the year 2000. It was thus the case of the respondents that ad hoc promotees were not eligible to appear in the departmental examination meant for the regular grade. It was clarified by instructions issued in that behalf that the result of those ad hoc employees who had appeared in the examination may not be declared. The applicant was an ad hoc promotee and thus could not appear in the departmental examination held in 2000. Despite these instructions, whereas in respect of all those who were ad hoc promotees, the result was withheld, but by mistake the result of the applicant was declared and he had passed the examination. On the facts as mentioned above, while repelling the defence projected by the respondents, the Tribunal observed, thus:
19. From the facts mentioned above, it is very clear that had the applicant been informed in the year 2000 itself that his name had been mistakenly included in the list of candidates, who had passed the examination, he would have had an opportunity to appear in the Departmental Examinations for UDCs held subsequently in the years 2001 and 2003 and, thus, he would have been eligible to be included in the list of TAs, who have been promoted as STAs, vide impugned order dated 08.08.2006. Having not been so informed, naturally, the applicant did not feel any need to take the Departmental Examination again and thus he missed out all the subsequent opportunities available to clear the examination.
It was a case where on facts it was established that the applicant could not know and had no means to come to know also that his result was wrongly declared. In the present case, even though it was an out and out mistake of the respondents, in which the applicant had no hand whatsoever that he belonged to ST category, but surely, the applicant knew about this mistake made by the department and kept quiet over it. The facts of the case in hand have no parity with the facts in decision rendered in Laxman Singh Bisht (supra).
10. Equally misplaced is the reliance upon a Single Bench decision of this Tribunal in OA No. 875/2006 in the matter of Ramesh Bhardwaj v. Director General, CSIR and Ors. decided on 23.8.2006. Brief facts of the case aforesaid would reveal that the applicant therein was selected for the post of Technical Assistant Group III. He had correctly mentioned his date of birth, and even though he was overage in view of the age requirement, he was selected and appointed on 7.12.2005 and was also given two advance increments in view of his qualifications. After his selection for the post as mentioned above, he resigned from his previous job. After few days thereafter, the applicant was asked to resign on the ground that there had been some error in his appointment, though the same was never intimated to him, and without giving him any show cause notice, his appointment was cancelled. On the facts of the case as mentioned above, it was held that the applicant had altered his position on the basis of appointment given to him, and the applicant was not at fault at all and he had correctly given all the particulars, including that of his age. The applicant having altered his position, the respondents would be estopped by their conduct in cancelling the appointment of the applicant.
11. The reliance placed by the respondents on FR 31-A would also be misplaced in the context of the facts of this case. FR 31-A reads as follows:
F.R. 31-A. Notwithstanding the provisions contained in these rules, the pay of a Government servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the President in this behalf.
12. No doubt, appointment of a Government servant can be cancelled as soon as it may be brought to the notice of the appointing authority that the promotion or appointment was result of factual error, but on cancellation, the employee has to be brought to the position which he would have held but for incorrect order of promotion or appointment. Whereas, therefore, it may be true that the wrong order of appointment/promotion would be cancelled, but surely, the applicant cannot be brought to the original position as surely, he cannot possibly take examinations that were held in 1998, 1999 and 2001. We have already mentioned above that the facts of this case are rather peculiar. Whereas, the mistake in showing the caste of the applicant as ST and later as SC was exclusively of the respondents, in which the applicant had no hand whatsoever, the applicant, however, knew about this mistake, but would not report it to the concerned authorities, as he ought to have, belonging to a disciplined force. Having said so, the situation that prevails now where the applicant cannot possibly be restored to his original position, has also to be taken into consideration.
13. We were pondering over many permutations and combinations to find out a solution to the vexed problem represented in the present case, but before we could ourselves arrive at some equitable solution, the counsel representing the applicant has pointed out that exactly in similar situation the respondents themselves had thought a solution which is just and equitable. The counsel referred to the case of one HC Asha Ram who had appeared in ‘A’ list test held in the year 1978 and his name was brought on promotion list ‘A’ w.e.f. 24.1.1979 against the quota of ST category. His name was brought on list ‘B’ w.e.f. 17.5.1980 after passing the lower school course in the term ending September, 1979. He was promoted as officiating Head Constable w.e.f. 7.7.1980. Subsequently, it came to notice that he actually belonged to general community and not to ST. The fact of his being an ST candidate was mentioned in the order of ‘A’ list against his name, but he did not point out that he actually belonged to general community. Had this fact come to the notice of the authorities at initial stage, his name would not have been included in promotion lists ‘A’ and ‘B’ and then promoted to the rank of Head Constable, as he had failed to make the grade on the basis of percentage of marks, fixed for SC candidates. In the circumstances, as mentioned, Asha Ram was given a show cause notice for cancellation of the erroneous order bringing his name on promotion lists ‘A’ and ‘B’ and promotion to the rank of Head constable. Asha Ram responded to the show cause notice and the concerned authority vide order dated 24.3.1986 (Annexure A-12) while taking into consideration FR 31-A as well, recommended the following actions:
i) The orders No. 1452-1500/SIP, dated 25.1.79, 8715-35/SIP, dated 17.5.80 and No. 12331-42/SIP dated 7.7.80, about bringing the name of HC Asha Ram, No. 3074/DAP to promotion list ‘A’, ‘B’ and promotion as Head constable (Ex.), respectively, are hereby cancelled.
ii) The name of HC Asha Ram, No. 3074/DAP is brought on promotion list ‘A’ w.e.f. 29.9.79, on list ‘B’ w.e.f. 27.11.80 and promoted as Offg. H.C. w.e.f. 1.9.81, the date when the last constable of the batch (whose name was admitted in promotion list ‘A’ w.e.f. 29.9.81) was promoted.
iii) For the purpose of seniority as Head Constable, HC Asha Ram, No. 3074/DAP, is kept between HC Ved Prakash No. 390/W, and HC Paras Ram, No. 97/DAP, who were promoted on 1.9.81.
iv) The excess pay and allowances, drawn by HC Asha Ram, No. 3074/DAP, from 7.7.80 to 31.8.81, may be recovered from him, in instalments.
v) The name of HC Asha Ram No. 3074/DAP, may be removed from S.T. category, as mentioned in his service record.
From the action taken at serial No. ii), it would appear that the name of HC Asha Ram was brought on list ‘A’ w.e.f. 29.9.1979, on list ‘B’ w.e.f. 27.11.1980 and promoted as officiating Head Constable w.e.f. 29.9.1981, the date when the last Constable whose name was admitted in promotion list ‘A’ w.e.f. 29.9.81 was promoted. From paragraph 5 of Annexure A-12, it would further appear that four tests subsequent to the test when Asha Ram had appeared, were held in between 1979 and 1983. The next immediate test from the test in which he had appeared was in 1979, i.e., 29.9.1979.
14. Having given our thoughtful consideration to the issue, we find the solution to the problem would lie in giving same treatment to the applicant as was thought proper even by the department in an absolutely identical case. That being so, while setting aside the impugned orders, we would order that the applicant be treated to have passed the examination required for promotion to the post Head Constable held immediately after the examination in which the applicant had appeared and passed the test, and he be treated as the last candidate having passed the said examination in the said year, and his seniority be accordingly fixed. The applicant shall also be entitled to consequential reliefs that may accrue to him on account of fixation of his seniority in the manner referred to above. In view of the peculiar facts of this case, costs are made easy.