Shri Moti Ram Sharma vs Union Of India And Another
2001 Latest Caselaw 1262 Del

ORDER

Dr. Mukundakam Sharma, J.

1. This petition was filed by the petitioner praying for a direction to the respondent to give notional/proforma promotion to the petitioner at various ranks from time to time with all the consequential benefits.

2. The petitioner was enlisted as a Constable with 100 Bn. of Border Security Force on 1.11.1967. He was promoted to the rank of Lance Naik on 2.1.1975 and thereafter he was sent on deputation of the Ministry of External Affairs in July, 1976. He was on deputation till 30.12.1983. He was again sent on deputation on 1.3.1984 and continued to work as such till 25.3.1991.

3. On 26.3.1991 the petitioner was repatriated from the Ministry of External Affairs to Border Security Force and at the request of the petitioner he has granted earned leave for 30 days i.e. from 30.3.1991 to 28.4.1991. The petitioner however, rejoined his duties only on 16.3.1992 after overstaying for a period of 323 days. Therefore, the petitioner was summarily tried for the offence of "without sufficient cause overstaying leave granted to him" under section 19(b) of Border Security Act, 1968. After the conclusion of the trial the petitioner was awarded a punishment of "service reprimand" and the absence period of 323 days was regularised by granting "dies non". The petitioner, thereafter served with the 47 Bn. BSF w.e.f. 16.3.1992 to 30.9.1994. The pay of the petitioner was fixed on repatriation and his name was also published to attend Pre-Promotion Cadre List 'B' test. However, since the petitioner could not pass the Map Reading Standard II test he was not allowed to attend the Pre-Promotion Cadre List 'B' test which was held from 1.3.1994 to 11.10.1994. The petitioner was again given an opportunity to qualify in the Map Reading Standard II test in the month of February, 1993 so that he could become eligible to attend Pre-Promotion Cadre List 'B' test. The petitioner however, did not appear in the Map Reading Standard II test during his service in 47 Bn. BSF. The petitioner sought for voluntary retirement w.e.f. 1.10.1994 and tendered three months notice in that regard on 10.6.1994. The said application was accepted by the Commandant, 47 Bn. BSF and the petitioner proceeded on voluntary retirement on 30.9.1994.

4. The petitioner, in the present writ petition has sought for his notional/proforma promotion at various ranks from time to time on the ground that he was prevented due to exigencies of service to take Pre-Promotion Cadre tests to earn higher promotion. The petitioner voluntarily retired from service w.e.f. 30.9.1994 and the present writ, petition was filed only in the year 1997. Earlier to the present petition the petitioner filed another petition in this court which was registered as C.W. 2116/1996. In the said writ petition the petitioner challenged the orders passed by the respondents treating 323 days of absence of the petitioner from duties as 'dies non' for all purposes. The said writ petition was dismissed by this court on the ground of un-explained delay and laches. The said order had become final and binding on the parties.

5. Therefore, it is apparent that on the date when the aforesaid writ petition was filed by the petitioner in this court and registered as C.W. 2116/1996 the reliefs that are sought for in the present writ petition could have also been sought for by the petitioner in the said writ petition. Cause of action for the present writ petition had arisen even prior to the date when the aforesaid writ petition was filed in this court. The petitioner want on voluntary retirement from service on 30.9.1994 and he is seeking for his notional promotion after a period of 3 years without giving any explanation about the same in this writ petition, nor the petitioner has mentioned in this writ petition that he had earlier filed a writ petition in this court in respect of the issue of 'dies non' and thereby has concealed material facts from this court. The earlier writ petition was dismissed on 22.5.1996 and the present writ petition was filed on 7.11.1997, immediately after the aforesaid writ petition was dismissed on the ground of un-explained delay and laches. In the present writ petition also no explanation has been given by the petitioner as to why the petitioner had to wait for 3 years to seek redressal of his grievance, if any. In the earlier writ petition also the petitioner could have included the reliefs that have been sought for now, which would indicate that till then atleast the petitioner was not at all aggrieved by the actions of the respondents which are sought to be assailed in this writ petition. Therefore, this writ petition could also be dismissed on the ground of un-explained delay by laches and also for concealment of material facts and for not coming to this court with clean hands.

6. Even on the merits also I find from perusal of the records that the petitioner could not pass the Map Reading Standard II examination in spite of opportunities granted to him. Passing of the said test was a pre-condition to attend the Pre-Promotion Cadre List 'B' test. Unless the petitioner could qualify in the aforesaid Map Reading Standard II qualifying examination the petitioner could not have been promoted from the post of Lance Naik to Naik. The petitioner was also informed by the respondent that the Border Security Personnel who are on deputation with the Ministry of External Affairs in foreign assignment will not be called by units to attend PPC/DPC test. However, they will be afforded chance to undergo PPC/DPC test on rejoining their duties in the unit and if they qualify in the PPC/DPC test, they will be promoted according to rules. The petitioner rejoined his duties only on 16.3.1992 after overstaying leave for about 323 days. Thereafter the petitioner was offered to undergo the aforesaid Pre-Promotion Cadre List 'B' test. But as he did not qualify in the Map Reading Standard II examination which is a pre-condition, the petitioner could not have been allowed to attend the Pre-Promotion Cadre List 'B' test and therefore, no grievance could be made by the petitioner in that regard also.

7. In the result, I find no merit in the writ petition and the same stands dismissed. However, there will be no order as to costs.