Commissioner of Police, Delhi v. Brijesh Moolvanshi & Ors.

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:-

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. 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 postbased 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.