Ex Havildar Tilak Raj Singh vs Union Of India And Ors.
2008 Latest Caselaw 1408 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+     WP (C) No. 22970/2005


%                                           Date of decision: 21.08.2008



Ex-HAVILDAR TILAK RAJ SINGH                               ...PETITIONER
                                            Through: Mr. PDP Deo, Advocate



                                   Versus



UNION OF INDIA & ORS.                                     ...RESPONDENTS
                                            Through: Ms. Sonia Mathur with
                                                         Major S.S. Pandey


CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?           NO

2.     To be referred to Reporter or not?            NO

3.     Whether the judgment should be                NO
       reported in the Digest?



SANJAY KISHAN KAUL, J. (ORAL)

1. Rule DB.

2. At the request of the learned counsel for the parties, the petition

is taken up for final disposal.

3. The petitioner was enrolled as Sepoy in the Indian Army on

01.3.1980 and earned his promotion. The petitioner as Havildar was

posted to College of Combat at Mhow, for three and half years from

May 1996 to 20 Sept. 1999 as one of the training staff on ERE. The

petitioner thereafter joined his unit but was again posted to ERE for

nine months. The petitioner re-joined the battalion thereafter on

01.1.2002.

4. The petitioner came to know that his batch mates were

promoted to the rank of Naib Subedar while he was not granted

promotion. The petitioner thus made a representation against his

supersession. In response to the same, the respondents informed the

petitioner vide letter dated 12.7.2002 that since the petitioner was

posted on ERE and had not earned the requisite number of regimental

ACRs, the petitioner was not fit for promotion. Surprisingly, the

blame was sought to be put on petitioner that he should have been

aware that he was posted in ERE and that he would not be entitled to

promotion on account of absence of requisite number of regimental

ACRs. A further communication was also addressed to the petitioner

on 19.9.2002 intimating that as per Record Office Instruction (ROI),

the petitioner could be given notional seniority from the back date

along with his batch mates but only after he earned minimum two

regimental ACRs.

5. A second development which took place was that the petitioner

was punished on the charge of not physically checking instruments

deposited with the workshop while taking over the duties of Kote

NCO. The petitioner aggrieved by this punishment imposed on

15.11.2002 as also by the denial of promotion, submitted statutory

complaint to the Chief of Army staff through proper channels on

10.3.2003. Since no response was received, the petitioner filed Writ

Petition (Civil) 6171 of 2003 which was disposed of on 29.8.2005 with

a direction to dispose of the complaint by a speaking order before

15.10.2005. The travails of the petitioner did not even end there,

these directions were not complied with and he had to file another

Writ Petition (Civil) 20471/05. It is during those proceedings, learned

counsel for the respondents informed on 14.11.2005 that the

punishment given to the petitioner had been set aside in terms of a

communication dated 20.10.2005. However, no relief was provided to

the petitioner on the issue of denial of promotion. The grievance of

the petitioner was that there was no reasoned order in that behalf but

the earlier writ petition was disposed of with liberty to the petitioner

to challenge the order dated 20.10.2005 to the extent that the

petitioner had not been granted relief in respect of the denial of his

promotion.

6. Learned counsel for the respondents has not been able to

explain to us or seriously contend as to how the petitioner was to be

blamed for his posting to ERE and the consequent non-earning of the

regimental ACRs. It is not as if the petitioner sought that positing

himself.

7. The petitioner served at the ERE as a Training Staff ACRs for

three and half years and thereafter he joined the unit. The

respondents in their own wisdom again decided to send him to Mhow

for nine months possibly because his presence would have been useful

to the respondents. The petitioner has been unjustifiably denied his

promotion which was given to his contemporaries in August, 2001.

The petitioner since then stands retired from 29.2.2004.

8. The illegal and unjustified action of the respondents has not only

denied the petitioner the opportunity of serving in the higher rank but

has also deprived him extension of his service which would have

enured to his benefit along with the increased salary and other perks.

In this day and age where the respondents has a problem of getting

the requisite qualified persons it is highly deplorable that they should

deal with their officer in the manner as has been done in this case. We

see no reason why the petitioner must not be given all the benefits

which would have enured to him but for the illegal action of the

respondents.

9. We are aware that often while granting such relief it is not

necessary that a person be also granted the monetary benefits for the

period he would have actually served though he has not so served.

However, the present case is one where all the benefits must be given

to the petitioner.

10. In the present case, the communication dated 18.9.2002 of the

respondents shows that there is no other parameter lacking in the

case of the petitioner for denying him the promotion as the record

office itself has opined that the petitioner would get back dated

seniority along with his batch mates, the momement he earned two

regimental ACRs. Thus the petitioner is entitled to be promoted to

the rank of Naib Subedar from the date his batch mates were so

promoted along with all the consequential benefits of pay and

allowances and extension of services arising from attaining the said

rank.

11. The petitioner would in fact have been entitled to further

consideration of promotion from the rank of Naib Subedar and

extension of service but that would have required the petitioner to

earn his ACRs as a Naib Subedar which is not possible in the present

case. We, however, consider it appropriate to give a lump sum

compensation to the petitioner for denial of further promotion to him.

The respondents cannot be permitted to plead that the petitioner may

or may not have earned the requisite level of ACRs as a Naib Subedar

for subsequent promotion and thus no relief should be granted as the

same has happened because of the illegal action of the respondents

as also by reason of delay in taking action on statutory complaint.

The emoluments that the petitioner would have earned in such a

situation are agreed to be in the range of Rs. Three Lacs; or since

the extended service would have been for two years on such

promotion and with the monthly emoluments of approximately

Rs. 14,000/-. We thus quantify the amount at Rs. One Lac.

12. A writ of mandamus is issued directing

a) the respondents to pass necessary order for promoting the

petitioner to the rank of a Naib Subedar from the date when his

batch mates were so promoted and to remit him the full

consequential benefits till his notional date of retirement in the rank

of Naib Subedar.

b) to pay the petitioner a further sum of Rs. One lac as ordered above

for the denial of further opportunities of promotion and extended

tenure of service of two years over and above the rank of Naib

Subedar.

The petitioner is still also entitled to costs which is quantified as

Rs. 5,000/-.

Needful be done within three months from today.

The petition is allowed in terms of aforesaid.

SANJAY KISHAN KAUL, J.

AUGUST 21, 2008                              MOOL CHAND GARG, J.
rk