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2002 DIGILAW 1107 (DEL)

MOHINDER SINGH SHARMA v. UNION OF INDIA

2002-08-08

A.K.SIKRI, S.B.SINHA

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S. B. SINHA ( 1 ) THE petitioner was appointed in Punjab Armed Police in 1966, which was converted into border Security Force on 1. 4. 1968. Petitioner was promoted as Sub Inspector in 1989. Departmental Promotion Committee was constituted for consideration of cases of eligible sub inspectors for promotion to the post of Subedar (Inspector) in July, 1955. He was selected for the said post by the Departmental Promotion Committee and his name figured in the Panel which is known as E-list. The petitioner was, thereafter made to work as inspector from time to time at Jammu frontier and various other places. He had, however, all along been paid the salary of the sub inspector. In the aforementioned premise, the petitioner has filed this writ petition claiming inter alia the following reliefs: " (I) Hold and declare that the petitioner stands promoted to the rank of Subedar (inspector) w. e. f. 10. 12. 1996 with all consequential benefits. (ii) Issue a writ in the nature of mandamus or any other appropriate writ, order of directions commanding the respondents to pay the arrears of pay and allowances of the promotional post of Subedar (inspector) w. e. f from the date on his promotion to the said rank i. e. 1. 12. 1996 and to direct the respondents to issue formal promotion orders, if necessary. (iii) direct the respondents to pay the petitioner interest on market rate on the arrears of his pay and allowances illegally withheld by them. ( 2 ) THE contention of the respondent, as would appear from the counter affidavit is that despite the empanelment in E-list, no formal order was to be issued by the concerned inspector General, BSF if any of the following conditions existed: " (I) If any inquiry/vigilance case is pending/contemplated the promotion case be referred back to Force Headquarter for further orders. (ii) that he has not been dealt with under BSF Act and rules or awarded punishments from 24. 7. 1995 i. e. date of departmental promotion committee on 1. 12. 1996, (iii) Person against whom any penalty/punishment has been imposed in any criminal prosecution should also not be promoted. (ii) that he has not been dealt with under BSF Act and rules or awarded punishments from 24. 7. 1995 i. e. date of departmental promotion committee on 1. 12. 1996, (iii) Person against whom any penalty/punishment has been imposed in any criminal prosecution should also not be promoted. (iv) Any person who has become low medical category after bringing his name in the panel should also not be promoted till he improves his medical category to the prescribed level i. e. aye ( 3 ) THE petitioner has contended that a consequent to the empanelment of the petitioner vide order dated 20. 11. 1996, he was promoted to the rank of Subedar ( Inspector) w. e. . 1. 12. 1996. He was then posted as Sub-inspector in DG MT Pool, BSF, New Delhi and was on promotion allotted to Jammu Frontier. Allegedly in terms of the existing practice the piping in ceremony of the petitioner was held in the office of Shri U. S. Negi, DIG, (HQ) FHQ, on 1. 12. 1996 and the DIG put the stars/badges of rank of Subedar ( Inspector) and since then the petitioner has been wearing the uniform. On 17-1-1997, his transfer to Jammu frontier was cancelled and he was transferred to the Director General ( Reserve) store in the provisioning directorate FHO, BSF New Delhi. On 24. 1. 1997, he was relieved from DG MT pool and jointed Provisioning Directorate FHO, BSF, New Delhi on the same day as Inspector and he was directed to take over the charge of DG (reserve) Stores from Rambir Singh parihar who was transferred consequent to his promotion as Assistant Commandant. On 8th july, 1997 a charge-sheet was filed by the CBI in the Court of the Metropolitan Magistrate patiala House New Delhi for allegedly mentioning wrong date of entering the government service in the form for allotment of government quarter. However, the petitioner pleaded not guilty. ( 4 ) THE contention of the respondent is that on or about 3-12-1996, a communication was received from CBI at the HQ directorate of BSF showing involvement of the petitioner in a criminal case which was registered by CBI under directions of the Supreme Court and on that account no formal order of promotion was passed till date. ( 4 ) THE contention of the respondent is that on or about 3-12-1996, a communication was received from CBI at the HQ directorate of BSF showing involvement of the petitioner in a criminal case which was registered by CBI under directions of the Supreme Court and on that account no formal order of promotion was passed till date. ( 5 ) THE respondent, inter alia, contended that since the name of the petitioner had been cleared for promotion, discipline/vigilance clearance was sought from his previous HQ, i. e. Directorate General Motor Transport Pool vide UO Note dated 12. 2. 1997 for issuance of formal order of promotion. However, this does not mean that the petitioner was already promoted to the rank of inspector. The relevant portions of the promotion order reads thus: " FROM PERS (.) PROMOTION LIST e FOLLOWING Sls FROM SRL 136 TO 175 as PER LIST CIRCULATED VIDE THIS HQ ORDER No. 17/72/94/pers/bsf/m dated 9 OCT 95 ARE HEREBY CLEARED FOR PROMOTION TO THE RANK OF subedar WEF 01 DEC 96 RPT 01 DEC 96 ON REGULAR BASIS PROVIDED they ARE QUALIFIED IN JUNIOR LEADER COURSE (.) THEY ARE FURTHER allocated TO FIRS/ ESTABLISHMENTS AS NOTED AGAINST EACH (.) if ANY ENQUIRY/ VIGILANCE CASE/ DISCIPLINARY CASE IS PENDING/ contemplated AGAINST ANY ONE COMM. A HIS PROMOTION CASE BE referred TO THIS HQ FOR FURTHER ORDERS (. ). ALSO ENSURE SAID persons HAVE NOT BEEN DEALT WITH UNDER THE BSF ACT AND RULES and AWARDED NO PUNISHMENTS FROM 24/7/95 I. E. DATE OF DPC TO 01 dec 96. " ( 6 ) THE qualification of the petitioner is not in dispute. The concerned IG in terms of the said E-list were to issue promotion orders. However, no such order was to issue if one or other ingredient as referred to hereinbefore Was existing on the relevant date ( 7 ) IT is not the case of the respondents that as enquiry by the CBI was pending on the said date, even then case of the petitioner was required to be referred to the force HQ for further orders. Admittedly, the same had not been done. It is also not the case of the respondent that the petitioner had been dealt with-under BSF Act and Rules or any punishment has been awarded from 24. 7. 1995 to December, 1996. Admittedly, the same had not been done. It is also not the case of the respondent that the petitioner had been dealt with-under BSF Act and Rules or any punishment has been awarded from 24. 7. 1995 to December, 1996. It is not the case of the respondent that the petitioner had been imposed any penalty in connection with the criminal prosecution. The respondent further did not contend that the petitioner has become low medical category. ( 8 ) IT is really a matter of great surprise that despite the fact that no formal order of promotion was issued, in ail the official documents namely movement order and transfer orders etc the designation of inspector was shown against the name of the petitioner. In office order dated 17. 2. 1997 in terms whereof the petitioner amongst others was taken on the strength of FHQ was described as "sl Mohinder Singh ( Now Inspector)". ( 9 ) DENIAL of promotion to the petitioner or non-issuance of promotion order was as a result of a case of CBI was pending. It has been alleged : "in this connection it is intimated that the case reg. Issue of formal promotion order in respect of No. 68588246 Sl Mohinder Singh as Subedar was examined again in consultation with HMA. As ruled by MHA, he cannot be promoted as Subedar until the criminal case registered against him in the court by the CBI is finalized and he is completely exonerated of the charges. The individual may be informed accordingly. " ( 10 ) THE official records clearly show that the petitioner had been performing his duties as inspector from the very beginning and all procedures in relation thereto had been complied with. There is nothing on record to show that such duties were being performed by the petitioner on officiating or temporary basis. No such order was passed by the respondent and the contents of the Counter filed by the respondent do not reveal that the appropriate authority had applied its mind to the effect that as to whether any enquiry proceedings or criminal case was pending against him on the relevant date. It is also interesting to note that even in the charge sheet filed by the CBI the petitioner has been described as "presently inspector". It is also interesting to note that even in the charge sheet filed by the CBI the petitioner has been described as "presently inspector". ( 11 ) FOR the reasons aforementioned we are of the opinion that the respondents have unduly and unjustly refused to issue the formal promotion order-and denied him the monetary benefit arising thereunder. If the respondents were of the view that the petitioner was not entitled for promotion, it was obligatory on their part to arrive at a finding at the crucial juncture one way or the other. The communication from CBI admittedly was received six months after his empanelment. The receipt of communication from CBI was not a ground as indicated hereinbefore on. the basis whereof the petitioner would have been denied the benefit of his being empanelled. E-list, as is well known as insignia of the fact that the candidate has been promoted. A formal order of promotion is merely a ministerial act. Such an order, it would bear a repetition to state, could be withheld if any of the four conditions mentioned in the counter-affidavit was satisfied. ( 12 ) AS in the instant case, none of the aforesaid four conditions is attracted, this writ petition must succeed. However, there can be no doubt whatsoever that despite the grant of promotion to the petitioner on the post of inspector it would be open to the respondent to take any action against him as is permissible in law consequent upon the judgment and order which may be passed against the petitioner in the criminal case. This writ petition is allowed. All arrears of pay and allowances should be paid to the petitioner at an. early date and not later than six weeks from the date of communication of this order. Petitioner shall also be entitled to costs of the petition quantified at Rs. 1000/ -.