Shiv Kumar vs Govt. Of Nctd

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OA No.4249/2016



Central Administrative Tribunal
Principal Bench, New Delhi

O.A. No.4249/2016

Order reserved on : 28.09.2026
Order pronounced on: 26.10.2026


Hon’ble Dr. Chhabilendra Roul, Member (A)
Hon’ble Mr. Rajveer Singh Verma, Member (J)


Shiv Kumar,
Age 51 years,
S/o Shri Brahem Singh,
R/o Village – Nawal, PO Laliyana,
Distt: Meerut.
...Applicant

(By Advocate : Shri Amit Yadav with Dr. Monika and Ms. M.
Rehan)

Versus

1. The Govt. of NCT of Delhi,
Through Chief Secretary,
Delhi Secretariat, ITO
New Delhi.

2. Commissioner of Police,
Police Headquarters,
Jai Singh Marg, New Delhi.


3. Special Commissioner of Police,
Police Headquarters,
Jai Singh Marg, New Delhi.

4. Sh. Mukesh Antil,
E-3/495, Paradise Apartment,
Sector-18, Rohini, New Delhi-89.
Digitally signed by
RACHNA KAPOOR
RACHNA KAPOOR
...Respondents


(By Advocate : Shri Ramjan Khan with Ms. Illashree, Shri
Harkesh Parashar with Shri Yogesh Kumar Mahur)

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ORDER
By Hon’ble Mr. Rajveer Singh Verma, Member (J) :-

The applicant was enlisted as Sub-Inspector
(Executive) in Delhi Police on 27.07.1999 through the open
competitive examination conducted by the Staff Selection
Commission (SSC). He was posted in the Special Cell on
08.11.2012 and, while working at Ghazipur, was part of the
team which apprehended the criminal Salli and his
associates. Respondent No. 4, Shri Mukesh Kumar, was
appointed as Sub-Inspector on 11.05.2005

2. The cases of the applicant and Respondent No. 4 for
out-of-turn promotion (OTP) to the rank of Inspector (Exe.)
under Rule 19(ii) of the Delhi Police (Promotion and
Confirmation) Rules, 1980 (the Rules) were considered by
the Incentive Committee on 01.02.2013 [and by the DPC on
02.02.2013]. By order dated 05.02.2013, Respondent No. 4
was promoted as Inspector (Exe.) on OTP basis against the
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vacancy of the year 2012-13. The applicant was promoted
as Inspector (Exe.) on ad hoc basis w.e.f. 01.05.2013. By
order dated 19.11.2015, the services of both the applicant
and Respondent No. 4 were regularised in the rank of
Inspector w.e.f. 11.12.2014, with Respondent No. 4 placed

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below the applicant. By order dated 08.12.2015, the
applicant was regularised in the rank of Inspector (Exe.)
w.e.f. 11.12.2014 with bottom seniority w.e.f. 15.04.2014.

3. The applicant submitted a representation dated
05.01.2016. The respondents rejected his claim by order
dated 09.05.2016 (the impugned order). Aggrieved, the
applicant has filed the present OA seeking the following
reliefs:
"I. To quash and set aside the order dated 09.05.2016 and
direct the respondents to grant the promotion to the post of
Inspector to the applicant w.e.f. 05.02.2013, as has been
granted to Sh. Mukesh Kumar alongwith all consequential
benefits.

II. cost of proceedings may also be awarded to the applicant;

III. any other relief which this Hon'ble Tribunal may also be
passed in favour of the applicant."

4. Learned counsel for the applicant contends that the
impugned action is illegal, arbitrary and violative of Articles
14, 16 and 21 of the Constitution. The DPC did not indicate
which of the two officers was to be promoted, and the
applicant, being senior, ought to have been promoted in
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place of Respondent No. 4 w.e.f. 05.02.2013. The applicant
was appointed Sub-Inspector on 27.07.1999, whereas
Respondent No. 4 was appointed as such in 2005.

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5. It is further contended that the order dated
05.02.2013 shows that there was a vacancy for 2012-13
under the OTP quota, and the respondents themselves, by
order dated 19.11.2015, regularised both officers from the
same date i.e. 11.12.2014, keeping Respondent No. 4 below
the applicant.

6. Reliance is placed on the judgment of the Hon'ble High
Court of Delhi in W.P.(C) No. 2414/2012 and connected
writ petitions.

7. The official respondents oppose the OA. They submit
that the grounds taken in the representation dated
05.01.2016 differ from the prayer in the OA, and that the
applicant never represented for the relief now claimed. They
further submit that the challenge, in substance, is to the
order dated 19.11.2015 (Annexure A/1) and is beyond the
period of one year prescribed by the Administrative
Tribunals Act, 1985.

8. On merits, the official respondents submit that the
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names of the applicant and Respondent No. 4 were
considered by the Incentive Committee on 01.02.2013,
which recommended Respondent No. 4 for OTP under Rule
19(ii), as such promotions are made on a first come first
serve basis and the citation of Respondent No. 4 was

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received before that of the applicant. Since only one
vacancy was available, the applicant could not be
promoted. On availability of a vacancy, he was granted ad
hoc promotion by notification dated 01.05.2013.

9. The official respondents further submit that, pursuant
to directions in OA No. 2009/2013 ( Vijender Singh & Ors.
v. Govt. of NCT of Delhi & Ors. ), Promotion List-F (Exe.)
for 2013-14 was drawn up by notification dated
24.04.2014. As OTP promotees are placed at the bottom of
the list, and the applicant was senior in the substantive
rank, he was placed above Respondent No. 4 for the
purpose of seniority. They also submit that the applicant
was not heading the team which apprehended the
criminals; he was a member of the team headed by Shri
Ishwar Singh.

10. Learned counsel for Respondent No. 4, who was
impleaded on an MA, submits that Respondent No. 4 was
granted OTP in 2013 for extraordinary service and bravery
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shown on 19.01.2013 and was rightly promoted in
accordance with the rules. It is submitted that the
department placed the applicant above Respondent No. 4 in
the seniority list, which the official respondents have not
disputed, but that the failure to prepare the seniority list at

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the relevant time, owing to the pendency of the OA, has
resulted in incorrect fixation of Respondent No. 4's
seniority.

11. In rejoinder, the applicant submits that the
respondents have admitted that he is senior to Respondent
No. 4 in the substantive rank, and that denial of OTP to
him w.e.f. 05.02.2013 is therefore unjustified.

12. We have heard learned counsel for the parties and
perused the material on record.

13. The following points arise for determination:
(i) whether the OA is barred by limitation or is not
maintainable because the representation differs from the
relief claimed;
(ii) whether the denial of OTP to the applicant, in preference
to Respondent No. 4, is vitiated in law; and
(iii) what relief, if any, the applicant is entitled to.

14. On point (i), the official respondents contend that the
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applicant is in substance assailing the order dated
19.11.2015 beyond one year. We are not persuaded. The
orders dated 19.11.2015 and 08.12.2015 fixed the
applicant's date of regularisation and his seniority in the
rank of Inspector (Exe.). It is through these orders that the

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consequence of the decision taken in February 2013
crystallised in terms of the applicant's position in the cadre.
The applicant represented within weeks, on 05.01.2016,
and the respondents considered and rejected his claim by
the order dated 09.05.2016; they did not reject the
representation as belated. The present OA, filed on
15.12.2016, is within one year of the order dated
09.05.2016, and within the period prescribed by Section 21
of the Administrative Tribunals Act, 1985.

15. Nor does the objection regarding the representation
merit acceptance. The grievance in the representation and
in the OA is the same, namely the applicant's promotion
and seniority in the rank of Inspector (Exe.) vis-a-vis
Respondent No. 4, and the respondents rejected his claim
on that subject. The form in which a prayer is framed does
not alter the substance of the grievance. Point (i) is
answered against the official respondents.

16. Rule 19(ii) of the Rules, as reproduced by the Hon'ble
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Supreme Court in Govt. of NCT of Delhi and Ors. v.
Ravinder Pal , Civil Appeal No. 6283/2015, decided on
04.03.2021 (para 3), reads:
"(ii) To encourage outstanding sportsmen, marksmen, officers
who have shown exceptional gallantry and devotion to duty,
the Commissioner of Police may, with prior approval of
Administrator, promote such officers to the next higher rank

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provided vacancies exist. Such promotions shall not exceed 5
per cent of the vacancies likely to fall vacant in the given year
in the rank. Such promotions shall be treated as ad-hoc and
will be regularized when the persons so promoted have
successfully completed the training course prescribed like
(Lower School Course), if any. For purposes of seniority such
promotees shall be placed at the bottom of the promotion list
drawn up for that year."

17. The Rule rewards an individual act of exceptional
gallantry and devotion to duty. It operates only where
vacancies exist within the ceiling of 5%, and it requires the
prior approval of the Administrator. Seniority in the feeder
rank is not the criterion. That is the criterion under Rule
19(i), and the Hon'ble High Court of Delhi in Commissioner
of Police and Ors. v. Sunil Kumar , W.P.(C) No.
2414/2012 and connected matters, decided on 06.05.2013,
drew the distinction between the two sub-rules in the
following terms (para 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'."

It follows that the applicant cannot claim OTP merely
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because he is senior to Respondent No. 4 in the rank of
Sub-Inspector.

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18. The judgment in Sunil Kumar, on which the applicant
relies, decided the year from which an OTP promotee's
seniority is to be reckoned. The Hon'ble High Court held
(para 17):
"Plain and simple English language guides us that in the
promotion list drawn up for that year i.e. the year of promotion,
the names of these subordinate officers have to be entered and
for purposes of seniority to be placed at the bottom of the
promotion list drawn up for that year, meaning thereby the year
of the promotion and not any other year."


19. The Hon'ble Supreme Court affirmed this view in
Ravinder Pal (supra), observing (para 9):

"This would, in turn, imply that the promotions are earned in
the year when the vacancy accrued." The judgment governs
where an OTP promotee is placed in seniority. It does not lay
down that OTP is to follow seniority in the feeder rank, and it
does not by itself support the applicant's claim to the vacancy
given to Respondent No. 4.


20. An officer has a right to fair consideration for OTP, not
a right to the promotion itself. The Hon'ble High Court of
Delhi in Commissioner of Police and Ors. v. Harinder
Singh , W.P.(C) No.6989/2017 with W.P.(C) No. 8060/2017,
decided on 31.10.2023, held (para 17):
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"Undoubtedly, an employee enjoys only a right for consideration
and cannot claim promotion as a matter of right since the
consideration remains within the domain of the Competent
Authority in terms of Rule 19(ii) of the Delhi Police (Promotion
and Confirmation) Rules, 1980….. However, while considering
the case of the applicants, the Competent Authority is
mandated to act reasonably, fairly and in public interest."

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The Hon'ble High Court also noted the view of the Hon'ble
Supreme Court on parity (para 15):
"15. ….There is no dispute as to the observations of the Hon'ble
Apex Court that the facts differ from person to person, officer to
officer and act to act and as such in case of Out of Turn
Promotion, there cannot be any parity as a matter of right…."


21. The decision of the competent authority is thus open
to review on the ground that it rests on an irrelevant
consideration or is arbitrary, but the Tribunal does not
substitute its own assessment of the merit of the act.

22. On point (ii), the official respondents' own case (para 8
above) is that the Incentive Committee considered both
names on 01.02.2013, that only one vacancy was available,
and that Respondent No. 4 was recommended because OTP
is granted on a first come first serve basis and his citation
was received before that of the applicant. They further state
that the applicant could not be promoted because only one
vacancy was available. On the respondents' own showing,
therefore, the applicant's case was not rejected on an
assessment of the merit of his act. It was passed over
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because of the order in which the two citations reached
headquarters.

23. No rule or standing order prescribing the date of
receipt of a citation as the basis for choosing between

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officers under consideration for OTP has been placed before
us. Rule 19(ii) is directed at rewarding exceptional gallantry
and devotion to duty. The date on which a citation happens
to reach headquarters bears no relation to the quality of the
act it describes. Where two officers are under consideration
against one vacancy, the competent authority is required to
compare the merit of their respective acts. A choice made
on the order of receipt of citations rests on a consideration
irrelevant to the purpose of the Rule and fails the test of
acting reasonably and fairly laid down in Harinder Singh
(supra). To that extent, the decision to deny OTP to the
applicant, and the impugned order dated 09.05.2016 which
maintains it, cannot be sustained.

24. It does not follow, however, that the applicant is
entitled to OTP w.e.f. 05.02.2013 by direction of this
Tribunal. Whether the applicant's role was of a quality
warranting OTP, including the respondents' contention that
he was a member and not the head of the team led by Shri
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Ishwar Singh, is for the competent authority to assess on
the material before it. The only vacancy for 2012-13, as
stated by the respondents, was filled by Respondent No. 4,
whose promotion is not under challenge. Rule 19(ii) further
requires that vacancies exist within the 5 ceiling and that
the prior approval of the Administrator be obtained. These

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are matters for the competent authority. The appropriate
course is to remit the matter for fresh consideration, with
directions as to the date from which OTP, if granted, is to
take effect. Such a course was adopted by this Tribunal in
HC Sukhbir Singh v. Govt. of NCT of Delhi & Ors ., OA
No. 2304/2010, decided on 18.01.2011, where the
direction, as reproduced by the Hon'ble High Court of Delhi
in Naresh Kumar Solanki v. Govt. of NCT of Delhi &
Ors. , W.P.(C) No. 2431/2024, decided on 25.09.2025 (para
5), was:
"Respondents are directed that the applicant be given OTP as
ASI either w.e.f. 31.10.2005 or when the first vacancy under
the OTP category became available, whichever is earlier."

25. We do not rest our conclusion on the placement of the
applicant above Respondent No. 4 in Promotion List-F
(Exe.) for 2013-14. That placement followed from the last
sentence of Rule 19(ii), under which OTP promotees are
placed at the bottom of the promotion list for the year, and
is not an acceptance by the department that the applicant
was entitled to the OTP vacancy. The contention of
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Respondent No. 4 that his own seniority has been
incorrectly fixed is not the subject matter of this OA, and
we express no opinion on it. While fixing the date and
seniority in the applicant's case, the competent authority
shall also bear in mind that a Sub-Inspector promoted as

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Inspector under Rule 19(ii) is not required to undergo any
promotional course ( Sunil Kumar , paras 11 and 20).

26. In view of the above, the Original Application is partly
allowed with the following directions:

(i) The impugned order dated 09.05.2016 is quashed and
set aside.

(ii) The respondents shall place the applicant's case for out-
of-turn promotion to the rank of Inspector (Exe.) under
Rule 19(ii) of the Rules before the Incentive Committee for
fresh consideration. The case shall be assessed on the
merit of the applicant's act, with reference to the citation
relating to the operation in which he participated, and
keeping in view the case of Respondent No. 4 considered on
01.02.2013. The order in which the citations were received
shall not be a ground for decision.

(iii) If the applicant is found fit, out-of-turn promotion shall
be granted to him w.e.f. 05.02.2013 if a vacancy within the
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ceiling of 5% prescribed by Rule 19(ii) was available for that
year; failing which, from the date on which the first vacancy
under the OTP category in the rank of Inspector (Exe.)
became available thereafter. The grant shall be subject to
the prior approval of the Administrator as required by Rule
19(ii).

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(iv) In that event, the applicant's seniority shall be fixed in
terms of the last sentence of Rule 19(ii), as interpreted in
Sunil Kumar (supra) and Ravinder Pal (supra). The
promotion of Respondent No. 4 shall not be disturbed.

(v) If out-of-turn promotion is granted, the applicant shall
be entitled to all consequential benefits, including pay
fixation and arrears of pay.

(vi) The respondents shall pass a reasoned and speaking
order, and communicate it to the applicant, within twelve
weeks from the date of receipt of a certified copy of this
order. Any consequential benefits shall be released within
eight weeks thereafter.

(vii) If aggrieved by the decision so taken, the applicant
shall be at liberty to seek remedy in accordance with law.

27. Pending MAs, if any, shall stand disposed of. No
order as to costs.


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(Rajveer Singh Verma) (Dr.Chhabilendra Roul)
Member (J) Member (A)

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