JUDGEMENT PER T.S. DOABIA J 1. The petitioner joined the Central Reserve Police Force (for short C.R.P.F.) as Sub Inspector in the year 1968. He was promoted as Inspector in the year 1974. In 1981, he came to be promoted as Deputy Superintendent of Police. Seven years later, as per the petitioner, came to be promoted as Deputy Commandant. At the time of filing of the writ petition, he was serving in 60 Battalion C.R.P.F. as 2nd-in-Command located at Channi Himat, Jammu. As per the petitioner, he has got excellent service record. He has earned ten cash rewards and four commendation entries. According to the petitioner, he was sent on deputation as grade-1 in the pay scale of Rs. 2,200-4,000/- to the office of the Director General, All India Radio, New Delhi. He was at that time in the pay scale of Rs.3.000-4500/-. The petitioner continues with the narration of facts and submits that on 16.12.1992, he was promoted as 2nd-in-Command in the pay scale of Rs.4,100-5,300/- in the parent cadre. He submits that consequent upon his promotion to the rank of 2nd-in-Command in the pay scale of Rs.4,100-5,300/- on regular basis, respondent No. 2 was supposed to intimate that the petitioner is to be continued with Director General, All India Radio or is to be relieved. As per the petitioner, this was essential so that he could earn Proforma Promotion. The requisite communication sent by the Director General, C.R.P.F. to Director General, All India Radio (A.I.R. for short) is placed on the record as annexure P-1. The petitioner submits that he submitted his representation to the respondent No. 4 i.e. Borrowing Department. These are annexures P-4, P-9. These are adverted to in para 4 of the writ petition. The petitioner was seeking proforma promotion. For this he placed reliance on annexures p-10 to p-15. The petitioner submits the respondent no. 3 i.e. the Secretary, Ministry of Information and Broadcasting, expressed its inability to relieve the petitioner. For this reliance is being placed on annexure p-16. This communication does support what is pleaded by the petitioner in para 6. The fact that the petitioner was seeking proforma promotion is again apparent from the representation annexure P-17. 2. The further fact which is pleaded by the petitioner is that a gradation list was issued by respondent no. 2. For this reliance is being placed on annexure p-16. This communication does support what is pleaded by the petitioner in para 6. The fact that the petitioner was seeking proforma promotion is again apparent from the representation annexure P-17. 2. The further fact which is pleaded by the petitioner is that a gradation list was issued by respondent no. 2. In this seniority of petitioner and respondents 6, 7 and 9 was shown as under: Sr. No. "Petitioner (V.B. Bhambhani) 175 Respondent No. 6, Sh. Partap Singh 176 Respondent No. 7, Sh. V.P. Saxena 177 Respondent No. 9, Sh. M.T. Prabhakaran 178 It is the grievance of the petitioner that in the Gradation list of 01.01.1993, names of respondents 8,10 to 13 did not figure. They were not performing the duties of 2nd-1n-Command. In this Gradaton list the petitioner was rightly shown as promoted to the rank of 2nd-in-Command in the pay scale of Rs. 4,100-5,3007-, for this reliance is being placed on annexure P18. the name of the petitioner figures in the seniority list at 175. The petitioner submits that at a later date another seniority list was issued. This is dated 01.01.1994. Even in this the petitioner was shown over and above respondents 6,7 and 9. The change in position which came in the course of one year stands reflected. This is also being reproduced below : Sr. No. "Petitioner 161 Respondent No. 6 162 Respondent No. 7 163 Respondent No. 9 164 3. On 01.01.1995, in the Gradation list, the petitioner was shown at serial No. 118 where as respondent 6 to 26 were shown over and above the petitioner. It is this factor which has given rise to cause of action to come to this court. According to him, he was shown all along above respondent No. 6,7 and 9 in the list of gradation of 01.01.1993 and 01.01.1994. There was absolutely no justification to put him below those who were junior to him. The petitioner submits that he submitted a representation. He further submitted that a recommendation was made in his favour. This recommendation is reproduced in para 13 of the writ petition. This is reproduced again as under: "The case of the petitioner deserves special consideration as it was not possible to have himself relieved to from his deputation post without the consent of the borrowing department. He further submitted that a recommendation was made in his favour. This recommendation is reproduced in para 13 of the writ petition. This is reproduced again as under: "The case of the petitioner deserves special consideration as it was not possible to have himself relieved to from his deputation post without the consent of the borrowing department. Since the borrowing department declined to relieve him, the officer should not be left to suffer the loss of seniority an emoluments. An early action in that matter was requested". 4. The petitioner admits that he should have been granted proforma promotion in the parent department. The mere fact that he was sent on deputation should not stand in his way. He submits that his deputation was duly approved by the Secretary in the Department of Personnel and Training. The approval to the extended tenure of the petitioner was duly accorded on 04.05.1995. For this reliance is being placed on Annexure P-23. It is accordingly submitted that if the entire period of deputation is taken having been duly regularized then he is well within his right to contend that he should be placed in the rank of 2nd-in-Command w.e.f. 16.12.1992 and he should also be adjusted and fitted in the grade of Rs. 4100-5300/-. He also seek seniority over and above respondents 6 to 27. Some of the respondents who have been arrayed have since retired from service. In a nutshell the claim of the petitioner is that when he was on deputation and when juniors were given higher positions then he should also have been accorded that position, 5. The stand taken by the official respondents 1 and 2 be taken note of. It is admitted that the petitioner was sent on deputation to Director General, A.I.R, as Security Officer Grade -I. This was in the pay scale of Rs. 2200-4000/-. This happened on 09.11.1998. At that time the petitioner was holding the post of Deputy Commandant. This was in the grade of Rs.4100-5300/-. According to the respondents, as the petitioner has proceeded on deputation to All India Radio on a lower post, it was made clear to him. As a matter of fact his case was considered of immediate repatriation. This happened on 09.11.1998. At that time the petitioner was holding the post of Deputy Commandant. This was in the grade of Rs.4100-5300/-. According to the respondents, as the petitioner has proceeded on deputation to All India Radio on a lower post, it was made clear to him. As a matter of fact his case was considered of immediate repatriation. However, he was allowed to continue on the clear understanding that the service rendered by the petitioner in the lower pay scale shall not count for the purpose of increment in the parent cadre. It is submitted that the petitioner was approved for promotion to the post of 2nd-in-Cornmand in the pay scale of Rs. 4100-53007- by the parent department. The Director General, A.I.R. was requested to give this information to the petitioner. Ultimately, the view expressed is that the benefit of next below-rule cannot be given to those officers who have been promoted during the extended period of deputation. The stand taken by the respondents in this regard is being reproduced below: "The petitioner was approved for promotion to the rank of Second-in-Command in the pay scale of Rs. 4100-5300 vide Directorate General, CRPF, vide Signal No. P.VII-3/ 92-Estt-1 dated 16.12.1992. Accordingly, the Directorate General All India Radio was requested to intimate whether the petitioner is willing to avail cadre promotion and the Directorate General, All India Radio is prepared to relieve him so that posting of the petitioner could be decided. It was also intimated that in case they want to retain him in all India Radio in the public interest, the same may be conveyed to CRPF so that case may be initiated for obtaining approval of the competent authority for his proforma promotion. The case of his proforma promotion was taken up with OOP & T. The DOP&T approved as a special case , to extend the deputation period of the petitioner upto 31.03.1994. The OOP and T have clarified that no Next below Rule benefits should be given to those officers who have been promoted during the extended period of deputation. Since the petitioner was promoted during the extended period" of deputation, he is not entitled to NBR benefits as ordered by the DOP&T. Moreover the petitioner was on deputation to All India Radio on a lower post. The petitioner was repatriated to CRPF on 31.03.1994 and he joined CRPF on 16.04.1994. Since the petitioner was promoted during the extended period" of deputation, he is not entitled to NBR benefits as ordered by the DOP&T. Moreover the petitioner was on deputation to All India Radio on a lower post. The petitioner was repatriated to CRPF on 31.03.1994 and he joined CRPF on 16.04.1994. He was assigned seniority as Second-in-Command from the date of his reporting CRPF on repatriation. Against assignment of his seniority the petitioner has filed the present writ petition." 6. Before proceeding to note the plea put forward by the respondents, it would be apt to notice one thing. It is settled law that so far as service benefits are concerned, these are part and parcel of Article 16 of the Constitution of India. This is a fundamental right. No person can be deprived of the advantages and the benefits which are conferred upon a person and which advantages flow from fundamental rights. This is on the theory that fundamental right cannot be waived. These can not only be not waived but a citizen cannot be deprived of these benefits. The earliest view on the subject would be found reported as Behram Khurshid Pesikaka vs. State of Bombay. AIR 1955 SC 123. It was observed that doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our constitution, The rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens justice, social, economic and political, liberty of though, expression, belief, faith and worship; equality of status and the opportunity. These fundamental rights have not been put in the constitution merely for individual benefit. Though ultimately, they came into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Reference to some of the Articles, inter alia, Articles 15(1), 20,21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State "you can discriminate". 7. In a still strong language the Supreme Court in the case reported as Basheshar Nath Vs. Commissioner of Income Tax, Delhi and Rajasthan and another. Reference to some of the Articles, inter alia, Articles 15(1), 20,21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State "you can discriminate". 7. In a still strong language the Supreme Court in the case reported as Basheshar Nath Vs. Commissioner of Income Tax, Delhi and Rajasthan and another. AIR 1959 SC 149 observed that Article 14 is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person. The obligation thus imposed on the State, no doubt, ensures for the benefit of all persons, as a necessary result of the operation of this Article, they all enjoy equality before the law. It was further observed that whatever breach of other fundamental right, a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right. 8. A full bench of Allahabad High Court in Pradip Tandon vs. State of Uttar Pradesh and others, AIR 1975 Allahbad I, considered this question. It was observed that merely because a citizen has filled some form would not confer upon the State a power to discriminate in violation of the Constitutional injunction. No question of estoppel or waiver arises where the State lacks the Constitutional power to enforce a rule which is unconstitutional and thus ultravires. 9. Another Division Bench in "Honble Chief Justice H.C. Allahabad and others vs. Abdul Wahid Khan and others, 1971 Labour and industrial Cases 773, speaking through Shri R.S. Pathak latter Chief Justice of India, expressed the same sentiments and held in no uncertain terms that the State is not relieved of the obligation to comply with the Constitutional mandate merely because a person affected chose to exercise a particular option. A right to discriminate against cannot be waived. See Omega Advertising Agency vs. State Electricity board, AIR 1982 Gauhati 37. 10. It is in the light of aforementioned legal position, plea put across by the petitioner and respondents has to be taken note of. The facts to be noticed again: i. The petitioner was sent on deputation on 09.11.1988; ii. On 16.12.1992 the petitioner was promoted as Second-in-Command in the pay scale of Rs. 4100-5300/- iii. The petitioner made a request for fixation of his pay in the pay scale and the alternative to repatriate him to the parent department; iv. The facts to be noticed again: i. The petitioner was sent on deputation on 09.11.1988; ii. On 16.12.1992 the petitioner was promoted as Second-in-Command in the pay scale of Rs. 4100-5300/- iii. The petitioner made a request for fixation of his pay in the pay scale and the alternative to repatriate him to the parent department; iv. He made a request for being relieved so that he may join his parent department on 22.12.92. This is Annexure P-4. v Another request was made vide annexure p-5; vi. Yet another request was made on p-6; vii. Yet another request was made on 30.08.1993 annexure p-7; viii. The petitioner sought proforma pro-motion on 15.10.1993. This is annexure P-8 ix. Director General, A.I.R., sent a letter to his Ministry for the settlement of the plea put forward by the petitioner; x. The Director General of the borrowing organization sent a communication to the Secretary of the department that petitioner cannot be relieved. A recommendation was also made for fixing his pay. This is apparent from annexures p-13, 14,15 and 16, xi. The petitioner made a request for proforma promotion, this is apparent from annexure p-17. This is dated 10.01.1994. 11. As indicated above, the only reason which has been indicated by the respondents is that the benefit of giving proforma promotion i.e. operation of the rule known as Next-below-Rule cannot be for the period during which the deputation of the petitioner was extended. The only question arises as to whether the petitioner was instrumental in this. As a disciplined member of the police force, he had to abide by the command of his superior officers. He made consistent request for being relieved. He was not being relieved because the respondent No. 4 felt that this can be done only in case a substitute becomes available. 12. I am of the opinion that the petitioner cannot be put to loss. From the facts and figures given in paragraphs 9 and 10 of the petition, it becomes apparent that the petitioner was senior to respondents 6,7 and 9. On account of non giving of proforma promotion, he was put below respondent 6 to 26. If the argument put across by the Union of India is accepted then it would amount to putting an employee who obeys the lawful orders of the superior to disadvantageous situation. 13. On account of non giving of proforma promotion, he was put below respondent 6 to 26. If the argument put across by the Union of India is accepted then it would amount to putting an employee who obeys the lawful orders of the superior to disadvantageous situation. 13. The further fact is that the extended tenure of the petitioner on deputation was duly regularized. This is so stated in para 15 of the petition. For facility of reference this para is being reproduced below : "15. The petitioner most humbly submits that the extended period of deputation w.e.f. 23.11.1993 to 31.03.1994 was approved by the respondent No. 5, i.e. the Department of Personnel and Training as a special case as was recommended by respondent no. 3 and 4 in public interest. The approval with regard to regularization of extended period of deputation in All India Radio upto 31.03.1994 was approved by the respondent no. 5 i.e. the department of Personnel and Training as a special case as was recommended by respondent no. 3 and 4 in public interest. The approval with regard to regularization of extended period of deputation in All India Radio upto 31.03.1994 was communicated by the Ministry of Home Affairs vide U.O. No. 1-21002/24/92-PRS No. 2 dated 04.05.1995. copy of which is annexed herewith as Annexure P-23. It is submitted by the petitioner that the whole period of deputation of the petitioner has been regularized by the respondent No. 1 and 5 and in view of this position there was also no bar for the respondents to give the proforma promotion under next below rule as per rules in vogue and grant him the pay scale of the rank of Second-in-Command." 14. The reply given may also be noticed. This reads as under: "15. The contents of para 15, are denied being false, wrong, and concocted. It is, however, more respectfully submitted that though the deputation period of the petitioner for the period from 23.11.1993 to 31.03.1994 has been extended as a special case by the DOP&T but the DOP&T have specifically stated that no HRA benefits should be given to those officers who been promoted during the extended period of limitation. It is, however, more respectfully submitted that though the deputation period of the petitioner for the period from 23.11.1993 to 31.03.1994 has been extended as a special case by the DOP&T but the DOP&T have specifically stated that no HRA benefits should be given to those officers who been promoted during the extended period of limitation. Since the petitioner has been promoted during the extended period of deputation he is not entitled to NBR benefits as order by the DOP&T. Moreover, he was on deputation to All India Radio on a lower post." 15. The specific stand taken by the petitioner is that his extended period was regularised is not being denied. All that is said is that benefit of Note Below Rule cannot be given. This is an argument which cannot be accepted. When the extended period of deputation has been duly regularised then whatever distinction the respondent-Union of India is trying to indicate would be of no consequence. As a matter of fact, this aspect of the matter has been considered by this Court in S.W.P. No. 631/95 titled Ramnik Kumar Vs. Union of India. The precise argument was raised. Shri Ramneek Kumar Saxena was also sent on deputation to the same organization in 1988. His period of deputation expired in 1991. He was relieved in 1992. Same objection as has been taken in this case was taken. This was repelled by making following observations: - "I think the controversy has shortened by such regularization. Not only this, prior to this regularization I have seen the correspondence whereby it is candidly clear that for the promotion purposes the CRPF organization had sought vigilance and integrity certificate from the Ministry of Information and Broadcasting before holding DPC for considering the petitioner for the post of commandant selection grade which was finally held on 26.11.1993." 16. M.Y. Kawoosa-J placed reliance on a Judgment of the Gauhati, High Court in Civil Rule No. 4143/95 titled Shri Prem Singh Sahrawat Vs. Union of India, and expressed an opinion that the petitioner was entitled to benefits of proforma promotion and this was allowed with retrospective effect. The position in the case of the petitioner is similar. As a matter of fact, in the communication dated 07.05.1993 Annexure p-11 when the case of the petitioner was sent to the Secretary level, a mention was made regarding the case of Shri R.K. Saxena also. The position in the case of the petitioner is similar. As a matter of fact, in the communication dated 07.05.1993 Annexure p-11 when the case of the petitioner was sent to the Secretary level, a mention was made regarding the case of Shri R.K. Saxena also. This R.K. Saxena is the same gentleman who filed writ petition in this court and was successful in claiming the relief. No distinctive feature exists in this case. I am, accordingly, of the view: i. That the petitioner whose deputation was extended and which was duly regularised cannot be penalized. ii. That right to get service benefit is a fundamental right and a citizen can not be penalised, this is because fundamental rights cannot be waived. Again in the State cannot act in breach of the fundamental right; iii. That once the period of deputation stood regularised, then the Note- Below-Rule would not be attracted and the petitioner would be entitled to the benefit; iv. That the case of the petitioner is similar to that of Shri R.K. Saxena. 17. This petition is accordingly allowed. The petitioner is held entitled to a writ of mandamus. The respondent would fix his seniority in the gradation list above respondents 6 to 26. He would be given proforma promotion as Second-in-Command w.e.f. 16.12.1992. He is also held entitled to arrears of salary in the pay scale of Rs. 4100-5300/-w.e.f. 16.12.1992. The decision given to the contrary on 16.11.1993 shall stand quashed. Let the benefit be calculated within a period of two months from the date of copy of the order passed by this Court is made available to the respondents by the petitioner. In event of nonpayment, the petitioner would become entitled to the interest at the rate of 12 % per annum. The interest component would be payable by the person on whose account delay occurs.