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2008 DIGILAW 1658 (PAT)

Nabbi Rai, Son Of Maina Rai v. Union Of India

2008-11-20

AJAY KUMAR TRIPATHI

body2008
Judgment AJAY KUMAR TRIPATHI, J. 1. Petitioner wants quashing of the letter dated 29.3.2004 contained in Annexure-2 by virtue of which he has been directed to refund a sum of Rs. 61,688/- which was paid in excess under the head of earned leave. He also wants the benefit of promotion under ACP Scheme as well as a direction upon the respondents to promote him on the next higher post of Sub-Inspector since he had already passed the departmental examination on 28.1.2003. 2. Initially petitioner entered service of the Indian Army and served under them for 24 years. After his superannuation, looking at his experience and skill the Border Security Force appointed him on the post of Head Electrician from 25.9.1989. On completing 13 years under the Border Security Force he retired on 31.7.2004. Just before his superannuation he received a communication dated 29th March, 2004 which is Annexure-2 to the writ application wherein it was stated that since the petitioner was granted and had availed 60 days leave per year when his entitlement is only for 30 days, he had availed excess of leave which required regularization by ajdustment in leave which may be available to him. But as the petitioner was going to superannuate soon therefore after due rectification of entitlement of earned leave to 30 days he had over run excess leave by 278 days. A look at Annexure-2 would show the calculation and as to how a sum of Rs. 61,688/- was calculated and ordered to be recovered from his retiral dues. 3. The Court will deal with this aspect of the matter first. From the pleading of the petitioner as well as the respondents it is apparent that under the leave rules such personnel who were deployed with a battalion or a unit or in active engagement were being granted 60 days earned leave a year. With regard to other personnel it was limited to 30 days. To bring about uniformity in the provision as well as on the demand made by the other personnel of the Border Security Force the matter was forwarded to the Ministry of Homes, Government of India. A decision in his regard took almost two years and the request was negated. In other words, the clear distinction between those personnel who were posted at the Headquarter or Peace Stations vis-a-vis active engagement was maintained. A decision in his regard took almost two years and the request was negated. In other words, the clear distinction between those personnel who were posted at the Headquarter or Peace Stations vis-a-vis active engagement was maintained. lt seems based on the forwarding of the proposal itself the Border Security Force authorities were graning 60 days earned leave to its personnel of all categories. When Government of India turned down the request, a policy decision was taken thereafter for correction in leave record of all such personnel. Petitioners leave record was also put under scruity since his superannuation was on the horizon. The consequence is Annexure-2 with which the petitioner is aggrieved. 4. Submission has been made by the learned counsel appearing on behalf of the petitioner that since it is neither a case of misrepresentation or fraud having been played by him in begetting that benefit there is no occasion now for the respondents to effect recovery by making adjustments in the records. In this regard he wants to place reliance on the case of Sahib Ram Vs. State of Haryana and Others, 1995 Supp (1) Supreme Court Cases 18. 5. The Court has examined the decision in question but would humbly like to record that the ratio rendered by the Hon ble Supreme Court may not be applied in the case of the petitioner in the given facts that the record correction with regard to earned leave was uniformly carried out for all such personnel who had been wrongly granted 60 days earned leave in a year instead of 30 days. Therefore applying the ratio of the judgment and granting relief to the petitioner would amount to granting him relief against a policy decision with uniform application to a large number of persons similarly situated. The action against the petitioner is not in isolation based on an error in his record alone. That is the reason why the Court is not inclined to interfere with the order contained in Annexure-2. 6. The action against the petitioner is not in isolation based on an error in his record alone. That is the reason why the Court is not inclined to interfere with the order contained in Annexure-2. 6. The other issue which has been raised by the petitioner is that he was allowed to sit for departmental examination which he had cleared on 28.1.2003 which is not disputed but then the respondents havs stated in their counter affidavit that promotion to the rank of Sub-lnspector based on the passing of departmental examination is not a matter of course because the petitioner had to have at least 18 years of service under the Border Security Force before he could be considered for appointment to the next higher post. It is not denied that petitioner alongwith other persons were allowed to sit in the examination on their request but the respondents have also brought a categorical undertaking given by the petitioner that merely because he was being allowed to sit in the examination would not entitle him to claim benefit of promotion. Since petitioner had rendered service for only 13 years, therefore, merely passing of the departmental examination will not confer any right on the petitioner to claim promotion as a matter of right. In the above stated position the prayer or the relief in this regard by the petitioner is also negated. 7. The next question raised by the petitioner is his entitlement for promotion under the ACP Scheme. This relief or claim of the petitioner has not been disputed by the respondents. In fact the statement in the counter affidavit is that the benefit under ACP Scheme is pending a decision before the Ministry of Homes and a final opinion in this regard would be communicated to the petitioner after the decision is reached. The counter affidavit had been filed in September, 2005. We are now into end of 2008. There is no material on record available to show that any final decision on the question of benefit of ACP has been communicated to the petitioner or a decision taking in this regard. The counter affidavit had been filed in September, 2005. We are now into end of 2008. There is no material on record available to show that any final decision on the question of benefit of ACP has been communicated to the petitioner or a decision taking in this regard. In that view the Court directs respondent No.1 i.e. Inspector General, Sector Headquarter, Border Security Force, Jaisalmer (Rajasthan) to follow up the matter at the appropriate level and communicate the final decision on this issue to the petitioner within a period of three months from the date of communication/production of a copy of this order. 8. ft is clarified that if no decision is communicated within the time-frame the Court may view the matter seriously specially when the respondents have had the luxury of taking a decision for more than three years since the litigation and their stand. 9. The writ application is allowed to the extent indicated above. There will be no order, however, as to cost.