Shri O.P. Sharma vs Union Of India & Another
2001 Latest Caselaw 747 Del

ORDER

Mukul Mudgal, J.

1. This writ petition filed under Article 226 challenges the illegal supersession of the petitioner in the matter of promotion as Assistant Commandant and denial of pay of the post, to which he had been retrospectively promoted on his representation and for consequent promotion and if necessary declaring the provision contained in Column 12-A of the Schedule to the B.S.F.(Assistant Commandants) Recruitment Rules, 1985 as Violative of Article 14 of the Constitution of India.

2. The fact of the case briefly stated are as follows:

(a) that on 1.9.1996, the petitioner joined as Scenographer (Sub-Inspector) Grade-III on the B.S.F and was confirmed on 1.1.1971;

(b) that on 5.2.1979, he was promoted as Subedar [Inspector (Steno)];

(c) that on 1.7.1079, the petitioner was superseded in the matter of promotion to the next higher post in the rank, i.e., Subedar (Personal Assistant);

(d) that on 28.4.1983, the petitioner was finally promoted as Subedar Major (P.A.)and

(e) that on 30.1.1987, the petitioner's representation to the effect that he was illegally superseded in the matter of promotion to the next higher post of Subedar Major was accepted and he was retrospectively promoted as Subedar Major with effect from 1.7.1979.

3. The petitioner has filed the petition leading to this judgment and has prayed inter-alia the following reliefs Along with consequential directions regarding preparation of a revised combined seniority list of Subedar Majors and Subedars of the Ministial Cadre with reference to 1985:

"(a). Issue a writ, order or direction in the nature of Mandamus directing the respondents to review the case of the petitioner for the purpose of promotion as Asstt.Commandant, with reference to 1986 and, if required, subsequent years, when he was not even considered by the D.P.C. on the ground that he had not undergone the requisite courses of training, with all consequential benefits.

(b). Hold and declare that provisions of column 12-A of the Schedule to the B.S.F. (Asstt. Commandants)Recruitment Rules, 1985, are violative of Article 14 of the Constitution, in so far as it excludes the high category of Subedar Majors of the Ministerial staff for purposes of eligibility for appointment as Assistant Commandant.

(c).Direct the respondents to pay to the Petitioner the pay of the post of Subedar Major (Personal Asstt.)to which he had been retrospectively promoted, for the period 1.7.79 to 5.5.83, with interest at market rate.

(d) Direct the respondents to prepare a revised combined seniority list of Subedar Majors and Subedrs of the Ministerial Cadre, with reference to 1985, by placing Subedar Majors enbloc senior to the Subedars (Inspectors)and then constitute a S.P.C. for review of the promotions of Ministerial incumbents made in 1986 and subsequent years to the post of Asstt. Commandant (Executive).

4. In so far as prayers (a) & (b) are concerned, the respondents have denied the prayers on the ground of Column 12-A of the Schedule to the B.S.F. (Assistant Commandants) Recruitment Rules, 1985.The petitioner in his writ petition has challenged the said Column 12-A as violative of Article 14 in so far as it excludes the post of Subedar Major, which is a category high the an Subedas for the purposes of eligibility and consideration for promotion to the post of Assistant Commandants.

5. The said Column reads as under:

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

"12

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

A. In case of recruitment by promotion:

Substantive Subedars (including combatised ministerial Subedars) in whatever trade they amy be in the Border Security Force with 5 years service in the grade rendered after appointment there-to on a regular basis."

6. The petitioner's case is that he was denied any benefit of the promotion to the post of Subedar Major by virtue of the reliance on this Column 12-A and by equating Subedars and Subear Majors the petitioners has been denied the benefit of promotion earned by to the post of Subedar Major and, therefore, the said Column 12-A violates Article 14 and is, therefore, constitutionally invalid. In so far as the aforesaid challenge is concerned, this questions the constitutional validity of the Recruitment Rules 1985 and accordingly should be heard by a Division Bench. I am, therefore, of the view that prayers a,, & d of the writ petition would depend upon the challenge to the constitutional validity of the Schedule 12 of the said Rules and this challenge should heard by a Division Bench of this Court.

7. In so far as the petitioner's prayer (c) for denial of the wages for the period with effect from 1.7.1979 to 5.5.1983 is concerned, I am taking up the said plea as this is independent of the challenge to the constitutional validity of the Column 12-A to the Schedule.

8. The respondents have pleaded that the petitioner was given the notional seniority with effect from 1.7.1979 even though he actually took charge of the post of Subedar Major (P.A.) with effect from 28.4.1983 and for the notional period was not entitled to emoluments of the post of Subedar Major. Reliance was placed for this purpose on FR 27 & FR 17(1). The learned counsel for the petitioner has relied upon the judgment of the Hon'bel Supreme Court in Union of India Vs K.V. Jankiraman etc. and has contended that the said judgment squarely applies to the facts of the present case.

9. The said judgment in para 26 held as follows:

"We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there amy be cases where the proceedings, whether disciplinary or criminal, are example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal inthe criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decided whether the employee at all deserved any salary for the intervening period and if he does, the extent, to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustive all the circumstances under which such consideration may become necessary.To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests.We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal.While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii)of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:

"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority b taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution/Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."

In the above judgment, also Union of India had placed reliance on FR 17(1) to contend that a notional promotee was not entitled to the benefit of wages for the period of notional promotion. The Hon'ble Supreme Court rejected the above plea. The above observations were made by Hon'ble Supreme Court and it was held that when an employee is completely exonerated and not found blameworthy in the least and is not visited with even the penalty of censure, he has to be given the benefit of salary Along with other benefits from the date on which he would normally have been promoted but for the disciplinary/criminal proceedings provided he himself not delayed them. The Supreme Court also further held that denial of arrears of salary should be accompanied by the recording of reasons. The learned counsel for the respondent, however, relied upon Paluru Ramkrishnaiah & Others Vs. Union of India to contend that for such retrospective promotion no wages could be paid. However, Paragraph 19 relied upon in the said judgment does not directly deal with the issue but refers only to an observation of the Madhya Pradehs High Court on the above issue.In any case the issue of denial of wages without any fault of an employee did not directly arise in that case but arose squarely in Jankirman's Case (Supra).Consequently in my view the principles of law laid down by Jankraman's Case directly apply and P. Ramkrishnaiah's Case (Supra) does not have a direct bearing on the present case.

10. In my view, in fact the present case stands on a much better footing as compared to Jankiraman's Case (Supra) as far the denial of benefits of the period 1.7.1979 to 5.5.1983 as a result of the late promotion of the petitioner with effect from 28.5.1983 is concerned. The only reason assigned by the respondent in the counter affidavit for denying the petitioner this benefit is that the petitioner was not granted the arrears of pay for the period 1.7.1979 to 5.5.1983 as he had not actually performed the duties of the higher post. In my view, this cannot be constituted to be the reason contemplated by the aforesaid judgment of Jankiraman(Supra) to deny the benefit of a notional promotion to the petitioner ad the counter affidavit itself indicates that the notional promotion was done as a result of the rearrangement of the selection list which was obviously due to the earlier selection list not being found to be operable. The earlier selection list was modified owning to representations from the affected officers. Since no reason has been recorded as to why the petitioner in particular was denied the benefit of the notional promotion except for saying that he did not actually work on the post, in my view, the judgment of Union of India Vs K.V. Jainkiraman Etc. (Supra) fully applies to the facts of the present case. In fact the above judgment would apply with even more force to the case of the petitioner who was not undergoing any disciplinary/criminal proceedings but was merely awaiting the result of his representation which was successful and eventually led to his being promoted with effect from 1.7.1979.In such a case the petitioner had suffered not due to his alleged delinquency but for the administrative delay in redressing the justified grievance raised by those who were affected by the earlier selection list modified in favor of the petitioner among others on 28.4.1983.In this view of the matter, the petitioner cannot be denied the benefit of the service from 1.7.1979 to 5.51983 in accordance with the judgment of UoI Vs. K.V. Jankiraman (Supra). The other Supreme Court judgment reported as Telecommunication Engineering Service Association (India) & Another Vs Union of India & Another relied upon by the respondent-UOI had been distinguished by this Court in a judgment in C.W.4497/96 dated 24.12.1999 in the following terms:

"The learned counsel for the respondents has relied upon a judgment reported as Telecommunication Engineering Service Association (India) & Anr . Vs Union of India & Anr. to contend that salary cannot be given for notional promotion.The decision of the aforesaid case was founded onthe special circumstances of that case in particular the fact that it dealt with 10,000 persons and on the special facts of the case, the Hon'ble Supreme Court upheld the denial of the back wages upon notional promotion.The aforesaid decision therefore does not apply to the facts of the present case and the learned counsel for the judgment of the Hon'ble Supreme Court, i.e., Union of India etc., etc. vs K.V. Jankiraman etc. (Supra) and the principal laid down in the aforesaid decision".

The aforesaid judgment of this Court was upheld by the Division Bench of this Court by dismissing the LPA.No.96/2000 on 18th February, 2000 and the SLP (Civil) 9319/2000 against the Division Bench's order dated 18th February, was dismissed by the Hon'ble Supreme Court on 12th July, 2000.In my view the reasons given in the above judgment in C.W.4497/96 dated 24.12.1999 for distinguishing the aforesaid judgment of the Supreme Court in Telecommunications Engineering Service Association(India) & Another (Supra) are applicable to the facts of the present case also.

11. Accordingly, the writ petition in so far as it relates to prayer (c) is allowed. It is directed that the petitioner will be paid the pay and allowances available to the post of Subedar Major (P.A.)for the period of his retrospective promotion, i.e., with effect from 1.7.1979 to 5.5.1983.

Petition is respect of prayer (c) accordingly stands disposed of.

12. The other disputes/prayers raised in the petition are referred to the Division Bench for adjudication on 10th July, 2001, subject to the orders of the Hon'ble the Chief Justice.