Major General A.K. Kapur, Vsm vs Union Of India & Ors.
2009 Latest Caselaw 4029 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                  Reserved On : 11.09.2009
%                                            Date of decision : 07.10.2009


+                CM 7961/2009 in WP (C) No.6856 of 2008


MAJOR GENERAL A.K. KAPUR, VSM                              ...PETITIONER

                                Through:      Mr. Maninder Singh, Sr.Adv.
                                              with
                                              Mr. Viraj R. Datar &
                                              Mr.Vineet Jhanji, Advocates.


                                         Versus


UNION OF INDIA & ORS.                                      ...RESPONDENTS

                                Through:      Mr. A.S.Chandihok, ASG with
                                              Mr. Sanjeev Sachdeva,
                                              Mr. Preet Pal Singh,
                                              Ms.S.Mercy Deborah &
                                              Ms.Geetika Panwar, Advocates.

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?                    Yes

2.        To be referred to Reporter or not?                     Yes

3.        Whether the judgment should be
          reported in the Digest?                                Yes

SANJAY KISHAN KAUL, J.

1. The petitioner joined the Army on 14.11.1971 and

earned his promotions up to the rank of a Major

General. The petitioner was considered for promotion

to the rank of Lieutenant General in the Army

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 1 of 26 Ordnance Corps (AOC) as per a Special Selection

Board held on 05.11.2007.

2. The result of this SSB was however withheld for over

almost ten months and the petitioner aggrieved by

the same filed WP(C) 6856/2008 praying for the de-

classification of the results of the SSB with respect to

the petitioner and to grant him promotion to the rank

of Lieutenant General with all consequential benefits.

3. On consideration of the writ petition and calling for

records, it was found that just prior to the SSB , an FIR

was registered by the CBI on 08.10.2007 on the basis

of sourced information alleging that the petitioner had

amassed assets disproportionate to his known

sources of income and a raid was also carried out at

the premises of the petitioner. The petitioner claimed

that nothing incriminating was found and all the

properties were either inherited or acquired from sale

of properties which had been inherited. The petitioner

claimed to be belonging to a landed class having

assets and had explained all the queries.

4. The case of the petitioner was directed to be treated

as one of a deemed DV Ban and thus was not

approved by the Appointments Committee of the

Cabinet („ACC‟ for short). The question which thus

arose was whether such a deemed DV Ban would

apply to the case of the petitioner. The policy

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 2 of 26 decision for imposition of a DV Ban is dated

04.07.2000 and the relevant provision in Clause 5(a)

of the policy reads as under:

"5. For imposition of Provisional DV Ban each case is examined by the AG‟s Branch (DV Dte.) on its merits. Provisional DV Ban is imposed in the under mentioned specific cases:-

a) SPE/CBI Cases (Type „C‟). When the competent authority accords approval for prosecution of the affected personnel (officers only) by the CBI in civil court, the officer is put under Provisional DV Ban type „C‟. When the CBI recommends departmental action, the officer will be put under Provisional DV Ban type „D‟/‟A‟/‟T‟, as the case may be, after the competent authority has taken cognizance of the offence and directs appropriate action against the officer."

5. The aforesaid policy was thus examined in the writ

petition and it was concluded that the pre-requisite

for a DV Ban is where a competent officer accords

approval for prosecution of the affected personnel by

the CBI. The stage of CBI making any

recommendation had not even arisen even though a

period of sixteen months had elapsed since the

registration of the FIR. It was thus found that the ex

facie it was not a case of DV Ban. We also took note

of the fact that the SSB had been held after the FIR

was registered and yet the SSB in its own wisdom had

recommended the case of the petitioner alone for

promotion finding nothing adverse in his career

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 3 of 26 profile and finding the other two persons unfit. We

found that there could not be any deemed ban as

every authority is governed by the law of the land and

the norms laid down by itself, so that there is no

unfettered discretion in any authority. Thus, once the

respondents in their wisdom had framed a policy as to

when a DV Ban comes into operation, and that

condition not being satisfied, there could not be a bar

of DV Ban to the promotion of the petitioner.

However, instead of granting the relief of promotion,

we considered it appropriate that it was a fit case

where the ACC may re-examine the complete matter

in terms of what we had observed and take a fresh

decision within one month.

6. No decision came to be taken for over three months

and ultimately the petitioner filed a contempt petition

which was listed on 12.05.2009 and notice was issued

returnable on 06.07.2009 giving liberty to the

respondents to take a decision in the meantime. The

petitioner received a communication dated

10.06.2009 informing him that the petitioner had not

been selected for promotion by the SSB held on

05.11.2007 and this stand was also reiterated in the

CCP stating that the ACC had examined the matter

afresh and approved that the Grading „B‟ (fit)

awarded by the SSB on 05.11.2007 in respect of the

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 4 of 26 petitioner be changed to Grading „Z‟ (unfit). This

contempt petition was withdrawn on 06.07.2009 and

in the meantime, the present application had been

filed by the petitioner.

7. It may be noticed that the petitioner was also served

with a convening order dated 06.06.2009 for

convening a court of enquiry for violation of

instructions contained in SAO 3/S/98 to the extent

that the petitioner failed to give intimation to the

Army in respect of certain HUF properties which

formed part of the properties in respect of which the

investigation was being carried out by the CBI. In this

behalf, information had been sought from the

petitioner on 31.03.2009 vide a letter of the even

date (wrongly mentioned as 31.03.2008) which was

replied to by the petitioner on 07.04.2009. The stand

of the petitioner was that the properties mentioned in

the letter had been acquired by the HUF of which he

was the karta. The HUF had been formed from 1987

onwards with a separate PAN number and that as per

SAO 3/S/98 there was no requirement of filing the

details of HUF property. These properties were in

any case known to the headquarters since October,

2007 when the FIR was registered and in pursuance

to a communication of the Western Command dated

30.04.2008, the petitioner had even communicated

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 5 of 26 his HUF assets vide letter dated 30.05.2008. One of

the properties stated to have been acquired by the

adult son of the petitioner was stated to have been

gifted to him by his grandparents at the time of his

attaining majority and the son was an independent

tax payer filing separate returns for three years prior

to the said letter.

8. The present application has been filed seeking a

clarification/modification of the Order dated

19.02.2009 by which the writ petition was disposed

of to the extent that the ACC should re-examine the

matter relating to the promotion of the petitioner

without in any manner being influenced by the

registration of the FIR by the CBI and directly in

accordance with the policy decision dated 04.07.2000

and to quash the decision taken by the ACC

purportedly under directions of this Court. A further

relief was sought clarifying that the order dated

09.06.2009 passed by the ACC holding the petitioner

as „unfit‟ giving him Grading „Z‟ is contrary to the

settled legal position.

9. The respondents have filed a reply. We had called for

the relevant records including the notes sent to the

ACC and have examined the same.

10. The objection of the respondents at the threshold is

that once the fresh order had been passed by the

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 6 of 26 ACC, the same is really a fresh cause of action and if

the petitioner has any grievance, he must challenge

the order by filing a separate petition. On the other

hand, learned senior counsel for the petitioner has

contended that if the order dated 19.02.2009 has not

been implemented in its letter and spirit keeping in

mind the observations of the Court then the petitioner

cannot be made to file petitions again and again over

what was the original cause of action.

11. We may note that intent and purport of our order

dated 19.02.2009, to our mind, was quite clear. The

case of the petitioner had been recommended by the

SSB though the final competent authority is the ACC.

The reason for non grant of promotion to the

petitioner was the pendency of the FIR in respect of

which no charge sheet had been filed for sixteen

months and even thereafter till the present

proceedings through the present application began.

The only reason was the concept of deemed DV Ban

introduced and we were categorical in our opinion

that there can be no such deemed DV Ban when the

policy decision dated 04.07.2000 provided for a

provisional DV Ban only when the CBI recommends

the case for departmental action. Thus the pre-

requisite was such a recommendation of the CBI did

not exist. Thus, it is keeping in mind the policy

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 7 of 26 decision and our interpretation of the policy decision

that the matter had to be re-considered by the ACC.

If such a reconsideration has actually taken place and

still the ACC has deemed it appropriate not to

promote the petitioner and once again it is the same

cause as was prior to our judgment dated 19.02.2009

then we can certainly issue directions in the present

application. We are thus examining whether the re-

examination of the case of the petitioner is in terms

of our directions dated 19.02.2009. Our order dated

19.02.2009 was not challenged any further and was

accepted by the respondents.

12. A perusal of the record shows that it is once again the

FIR registered against the petitioner on 08.10.2007

which has formed the basis of the decision of the

ACC. The notes recorded prior to the matter being

forwarded to the ACC and the note sending the

matter to the ACC leaves no manner of doubt in this

behalf.

13. The respondents being conscious of the fact that

there can no deemed DV Ban and that the policy

decision relating to the provisional DV Ban could not

come to their aid recommending that the grading of

the petitioner be changed to Grade „Z‟ (unfit) instead

of Grade „B‟ (fit). The performance of an officer is

judged by the SSB. The performance of the petitioner

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 8 of 26 was found to be good enough to recommend him for

promotion while others were not found fit for

promotion. The ACC having the last word is

dependent on other factors which may be taken into

account. These other factors is once again the same

FIR which cannot come in the way of promotion of the

petitioner as there was no recommendation of the CBI

on the date the decision as taken once again by the

ACC on 09.06.2009. The note for consideration of the

ACC records all the facts and once again states that

since a clean chit had not been given to the petitioner

and final outcome of the investigation is awaited, the

petitioner should not be promoted. In fact, it notes

that "only referring the matter to ACC will serve the

purpose of the Department". This thus shows that

what was sought to be done was a mere formality by

achieving the same objective by once again following

an illegal route. The note also shows that the first

aspect raised is of immovable properties possessed

by the petitioner as also some moveable assets. The

complete period of service of petitioner is being

looked into which runs into 36 years. The properties

held in the name of the HUF are stated to be in

contravention of the SAO 3/S/98 and thus it is stated

that the same warrants a disciplinary action. In

respect of this Army Order, it would be useful to refer

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 9 of 26 to the averments made by the petitioner in the

application in reference to the letter dated

31.03.2009 and his interpretation of SAO 3/S/98. The

relevant paras are as under:

"7. Furthermore, the petitioner has thereafter has also been served with a Convening Order dated 06.06.2009 wherein the Court of Inquiry has been convened for violation of instructions contained in SAO 3/S/98 by the petitioner to the extent that he has failed to give intimation to the Army in respect of the certain HUF properties which form part of the properties investigation in respect of which is apparently being carried out by the CBI.

True copy of the Convening Order dated 06.06.2009 is annexed hereto and marked as Annexure C-4.

8. In this respect the Petitioner was called upon by a communication dated 31.03.2009 to give details of properties returns in respect of the said properties. The petitioner had duly replied to the aforesaid communication by his letter dated 07.04.2009 wherein the correct position as per the Army instructions as also the factual position regarding all the properties were setup, despite which, reasons which are obvious a Court of Inquiry has been convened against the petitioner.

True copy of the communication dated 31.03.2009 and reply dated 07.04.20098 are annexed hereto and collectively marked as Annexure C-5 (Colly)."

14. In reply to the aforesaid averments, the respondents

have set out as under:

" 7 & 8 contents of these paras are matter of records."

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 10 of 26

15. Annexure C-5 referred to in the application of the

petitioner is the letter dated 31.03.2008 (the date

should have actually been 31.03.2009) whereby the

petitioner was asked to give details of the property

returns in respect of the properties mentioned

therein. The reply is dated 07.04.2009 annexed to

the application, which is also Annexure C-5. The

relevant portion of which reads as under:

"2. It is submitted that I have filed all the property returns required to be filed by me as per the SAO 3/S/98. The properties mentioned in the letter under reference (except Srl (a) (iv) ) have been acquired by a Hindu Undivided Family (HUF) of which I am only the karta. The HUF is named "Anand Kumar Kapur". This HUF is an independent financial entity as per the laws of the State with its own assets, income, expenditure and accounting/taxation status. The HUF was legitimately formed in 1987 from the assets inherited from the HUF of my father, after approval of the Taxation authorities. A separate PAN no. was duly allotted to it. Since 1987, I have filed separate annual income and Wealth Tax Returns as karta of the HUF. The Tax Returns in which these properties have been reflected have been assessed, accepted and found in order, year to year, by the competent authority, viz., Govt. of India, Ministry of Finance (IT Division).

3.In this regard, I would like to draw your kindly attention to the following provisions of the said SAO.

a) Para 2. "All ranks are required to report the acquisition or disposal of the property...., except those transactions which are conducted by the family members exclusively out of their own

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 11 of 26 earnings and possessions." The HUF properties are except as the transactions are from its own possessions and earnings.

b) Para 7 (c) Family members means a person "wholly dependent on him". The HUF is not dependent on me in any way whatsoever. Therefore, its assets cannot be linked to me as an Individual.

c) Para 14 (c) As regards property under Hindu Undivided Family, "transactions of immovable/movable property form individual ownership to "Hindu Undivided Family" or vice versa... are required to be reported." I confirm that none of these transactions were conducted between me as an individual and the HUF and therefore were not required to be reported under the SAO.

4. The property at Srl 2 (a) (iv) was acquired by my adult son from gifts bequeathed to him by his grandparents at the time of his attaining majority. He is an independent tax payer and has reported the subject property in his Income Tax Returns for the last three years.

5. I submit that in terms of Para 2 and 14(c) of SAO 3/S/98, I was not required to intimate my HUF properties, as explained above, However, I would like to mention that information of the HUF assets is known to the IHQ of MOD (Army) since October, 2007 as these properties form part of the FIR dated 10 Oct 2007. Also, in response to HQ South Western Comd letter No.47232/7/AI (DV-2) dated 30 Apr 2008, I communicated my HUF assets vide my letter of even No. dated 30 May 2008, enclosing copies of the PAN card and IT & Wealth Tax returns of the HUF. I also explained the origin and nature of my inherited and HUF assets in para 5 of the letter. Thus, the fact of my holding these properties as part of a HUF has been known. No observations was raised

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 12 of 26 by any authority since October 2007/May 2008."

16. The stand of the petitioner thus categorically is that in

terms of SAO 3/S/98 the HUF properties are exempt

as there are no transactions inter se the HUF and the

petitioner. This position is not even disputed by the

respondents. Further, the CBI has not given any

conclusion at the time when the matter was sought to

be decided by the ACC.

17. The noting shows that another aspect sought to be

raised, possibly as a red herring, is that the Delhi

Police had arrested the petitioner in the case

registered under Section 61/1/14 of the Excise Act for

being in possession of 44 bottles of liquor of foreign

make at his residence and the case was likely to be

concluded very soon. This aspect was in existence

even at the stage of the earlier consideration as it is

pursuance to the same search carried out on

08.10.2007 by the CBI. The bottles of liquor were

actually recovered from the residence of the mother

of the petitioner at Sainik Farms, New Delhi and the

petitioner‟s mother had made a statement to the

police that the bottles belonged to her and were

being collected over the years for the celebration

connected with her grandson. Despite this fact, the

ACC was sought to be given an impression as if these

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 13 of 26 bottles were recovered from the residence of the

petitioner though the petitioner was not residing at

Sainik Farms. Not only that, the proceedings against

the petitioner in respect of this case, on the charge

sheet being filed only on 16.03.2009, were stayed by

an order dated 14.07.2009 and it is State which has

been taken time since then.

18. As to what should be the approach of the authorities

in such matters is clarified by a judgment of the

Supreme Court in Coal India Ltd. & Ors. v. Saroj

Kumar Mishra; JT 2007 (6) SC 6. In the facts of the

case, a person employed with a government company

had a vigilance case pending against him, but had not

been placed under suspension. His juniors were

being promoted though he was not promoted and

during the pendency of the writ petition, charge sheet

was filed and the disciplinary proceedings were held

and employee was awarded the punishment of

reduction of pay. The High Court allowed the writ

petition directing promotion of the officer with effect

from the date when his juniors were promoted. The

Supreme Court dismissed the SLP of the employer

concluding that merely on the ground of pendency of

a vigilance case against the employee, he could not

be deprived of his promotion. The relevant office

memorandum was interpreted to imply that an

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 14 of 26 employee should not be harassed or deprived from

getting the benefit of DPC for an indefinitely

prolonged period on the ground of pendency of such

an inquiry especially when at the relevant date the

competent authority had not arrived at any decision

in terms of the circulars and that a charge sheet was

likely to be issued. It was observed in para 22 of the

judgment that a departmental proceeding is ordinarily

said to be initiated only when a charge sheet is

issued.

19. In the present case also the office memorandum is

quite clear and the object is that mere pendency of a

vigilance case would not come in the way of

promotion of an officer. It is only when the

recommendation is received from the CBI in terms of

the office memorandum dated 04.07.2000 that the

provisional DV Ban would come into operation. The

object of this office memorandum is also to prevent

harassment to an officer by mere pendency of a

vigilance case. The CBI enquiry had produced no

results till the relevant date and despite waiting for a

period of ten months no recommendation having

been made by the CBI, the petitioner approached the

Court. The decision in the writ petition was rendered

on 19.02.2009 till which time 16 months had elapsed

and there was still no recommendation of the CBI.

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 15 of 26 The reconsideration of the case of the petitioner by

the ACC was on 09.06.2009 and even by that time

also there was no recommendation of the CBI. The

petitioner is retiring on 30.11.2009 and thus the very

opportunity of the petitioner to earn his ranks is

sought to be defeated. We are conscious of the fact

that an element of greater probity would be involved

specially keeping in mind that the petitioner is

working at a senior position in the Army.

20. We had emphasized in para 7 of our judgment dated

19.02.2009 that no amount of subsequent monetary

compensation is a substitute for holding the rank.

The privilege to wear the uniform and the rank is only

of the armed services, paramilitary services or police

and it is the aim of any officer to hold the highest

rank and wear the same on his shoulder.

21. Another important aspect brought to our notice is that

throughout this period the petitioner has kept the

position of MGAOC (Major General Army Ordnance

Corps), HQ, South Western Command, Jaipur and is

involved with procurement and distribution of all

ordnance items for the South West Command. This

position is not even disputed by the respondents. The

petitioner thus is occupying an important position as

a Major General and the Army in its wisdom has

deemed it appropriate to keep him in that position

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 16 of 26 taking into consideration his past records. The Army

has found no reason till that date to really take any

action against the petitioner and even the convening

order dated 06.06.2009 has not proceeded any

further.

22. We are thus of the considered view that there was no

impediment whatsoever for the promotion of the

petitioner and the ACC ought to have promoted the

petitioner once there was no other material as noted

above by us, was on record. The structuring of the

note suggests that a wrong impression was sought to

be conveyed to the ACC that the grading of the

petitioner had been made unfit which could not be so

made when the only material available was not

sufficient to impose the provisional DV Ban as per the

policy decision. There cannot be a pick and choose

in this behalf by treating different officers differently

and the whole object of having a uniform policy

decision is sought to be defeated. The decision of

the ACC dated 09.06.2009 is thus completely contrary

to our directions contained in the Order dated

19.02.2009 and it appears to be only to complete the

formality and thus we are of the view that the

appropriate directions can be issued on the

application of the petitioner.

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 17 of 26

23. The next question to be considered by us is as to

what relief ought to be granted to the petitioner.

24. Learned senior counsel for the petitioner prayed that

the case of the petitioner should not once again be

sent to the ACC but that the petitioner should be

promoted and there is precedent for this and in fact

he contended that if subsequently something is found

after the relevant date, nothing precludes the

respondents form taking appropriate action in

accordance with law, but the right of promotion of the

petitioner cannot be defeated which has to be

considered as per the relevant norms on the relevant

date.

25. Learned counsel referred to the judgment of the

Supreme Court in H.L.Trehan and Ors v. Union of India

and Ors; AIR 1989 SC 568 to emphasize that the

approach adopted in the present case by the

respondents was only to somehow achieve their

objective and such an approach of the respondent is

not unusual as observed in the said judgment. In the

said judgment observations were made to the effect

that "it is common experience that once a decision

has been taken, there is a tendency to uphold it and a

representation may not really yield any fruitful

purpose."

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 18 of 26

26. An important judgment of the Supreme Court in

Badrinath v. Government of Tamil Nadu and Ors;

(2000) 8 SCC 395 was cited in support of the case of

the petitioner. The question of relief to be granted

was considered by the Supreme Court in the said

judgment in the context of the plea of the

respondents that the Supreme Court could neither

issue a mandamus to promote the appellant to super

timescale nor to assess his grading.

27. The Supreme Court found that the case was an

exceptional one as it had serious overtones of legal

bias. If it was proved that the assessment was mala

fide or found based on inadmissible or irrelevant or

insignificant and trivial material and if an attitude of

ignoring or not giving weight to the positive aspects

of one‟s career is strongly displayed, then the powers

of judicial review under Article 226 of the Constitution

are not foreclosed. The assessment of merits made

by the authorities was liable to be scrutinized by the

courts within the narrow Wednesbury principles or on

the grounds of mala fides. The following important

principles were summarized.

" 1) Under Article 16 of the Constitution, right to be „considered‟ for promotion is a fundamental right.

It is not the mere „consideration‟ for promotion that is important but the „consideration‟ must be „fair‟

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 19 of 26 according to established principles governing service jurisprudence.

2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer established that the non-promotion was bad according to Wednesbury principles or it was mala fides."

28. The Supreme Court thereafter proceeded to record

that the power of the Court to mould the relief in the

interests of justice in extraordinary cases cannot be

doubted and the Constitution of India designedly used

wide language in Article 226 to enable the Courts to

"reach justice wherever found necessary" and to

"mould the reliefs to meet peculiar and complicated

requirements of this country". In para 89, it was

observed that court may indirectly indicate the

particular manner in which the discretion has to be

exercised by the authorities and where it was not so

done, it was the fit case requiring the issuance of a

mandamus.

29. A reference has also been made to the observations

of the Division Bench in Kanwarjit Singh v. AIR India

International; DRJ 1992 (24) (DB). The observations

of Martin B. in Mayor of Rochester v. Regina ; 1858 1

B & P 1024, 1032, 1034 were cited with approval.

The observations are as under:

"But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 20 of 26 Court of Queen's Bench. That Court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute. Comyn's Digest. Mandamus (A) Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction it can be made applicable."

The High Court thereafter proceeded to state as

follows:

"The principle enunciated in Mayor of Rochester's case has been approved and followed not only in subsequent cases in England but by our own Supreme Court as well and why not? After all it enables the High Court "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." (See: Hochtief Gammon v.State of Orissa: 1976 (1) SCR 667, 676). In Halsbury's Laws of England, Fourth Edition Volume I, paragraph 89, the purpose of an order of mandamus is neatly summed up as "to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial and effectual."

The answer being in what has been noticed above, we, in exercise of our jurisdiction under Article 226 shall never shy away from issuing a writ of mandamus or a writ in the nature of mandamus when arbitrariness and perversion are writ large

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 21 of 26 and brought out clearly. The Supreme Court makes it clear in Comptroller and Auditor-General of India and another vs. K.S. Jagannathan and another (1986) 2 SCC 679, 693, in the following words:

"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion."

This is one such fit and proper case and thus calls for from this court an order which the respondent Corporation should itself have passed in proper and lawful exercise of its authority. We direct the respondent Corporation to appoint forthwith the petitioner to the post of Assistant Flight Purser. The petitioner shall also be entitled to costs of this petition. Costs quantified at Rs.1000/-."

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 22 of 26

30. In A.K.Jain v. Municipal Corporation of Delhi;

108(2003) DLT 93, the aspect of authorities being

directed to deal with a matter in terms of specific

directions was considered and it was concluded that

though normally the courts would not substitute their

own conclusion on the decision but the method and

manner and the cavalier fashion in the decision

arrived at by the respondents was based on no

material was totally irrational and therefore directions

were issued for appointment of the petitioner to a

post.

31. On the other hand, learned ASG submitted that at

best the matter should be referred back to the ACC.

32. We have given our deep thought to the matter,

conscious of the fact that the authorities, must have

lee way to appoint an appropriate officer especially to

such senior posts and yet such discretion must be

circumscribed by relevant policy decisions. The

policy makers were conscious of balancing the

interest of the administration and having fit and

honest officers to perform the task as against the

possibility of any undue harassment to an officer. It is

in this context that the provisional DV ban was

incorporated in a policy decision dated 04.07.2000.

Thus, the authorities in their wisdom deemed it

appropriate that mere pendency of a vigilance case

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 23 of 26 would not come in the way of promotion of an officer.

The respondents despite being conscious of such a

policy decision sought to introduce something totally

alien as a deemed DV Ban. This was frowned upon

by us in our order dated 19.02.2009 and we had

made it quite clear that unless there was any other

impediment, the pendency of the FIR would not come

in the way of the petitioner. The judgment was

accepted by the respondents. However, the intent

remained the same that despite the SSB having found

the petitioner to be the fittest person to be appointed

to the post, the recommendation of the SSB should be

given effect to if there was no other impediment in

the way of the petitioner. Thus, the petitioner having

been found fit was sought to be converted to unfit

once again only on the ground of pendency of the FIR

even though no recommendation from CBI had been

received till that date. As a red herring, the aspect of

liquor case was sought to be introduced, which we

have already explained, has been stayed by the

competent court apart from the fact that the liquor

was found in the separate residence of the mother of

the petitioner. She owned to it and stated that the

reason for collecting the same over a period of time

was for a celebration for her grandson. The approach

of the respondent is apparent from the note for

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 24 of 26 consideration of the ACC where it is observed that

only referring the matter to ACC would serve the

purpose of the Department. Therefore, an eye wash

was sought to be carried out.

33. If the petitioner had been promoted, nothing

precluded the respondents at the appropriate stage

to take action against him. The Army authorities

have deemed fit that during all this period of time

when the petitioner had not been promoted, he

continues to occupy the most important post i.e.

Major General Army Ordnance Corps (MGAOC), HQ,

South Western Command, Jaipur and the petitioner is

dealing with purchases. Thus, the petitioner had

been found fit to perform important duties dealing

with financial ramifications and yet promotion has

been denied to him. The origin of all this is what is

stated to be sourced information received just prior to

the petitioner being considered for promotion by the

SSB. We do feel that this is one of the exceptional

cases which fall within the category of cases as

mentioned in Badrinath v. Government of Tamil Nadu

and Ors‟s case (supra) where there is a clear case of

legal bias against the petitioner, who is sought to be

denied promotion on one count or the other though

none of the counts can come in the way of his

promotion. Once we are of the view that this is one of

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 25 of 26 those rare cases as referred in para 41 of Badrinath v.

Government of Tamil Nadu and Ors‟s case (supra), we

should not hesitate in giving the relief to the

petitioner as prayed for by learned senior counsel for

the petitioner that the petitioner should be treated as

having been promoted to the post of Lieutenant

General with all consequential benefits and a

mandamus is accordingly issued. We, however, make

it clear that nothing observed here still prevents the

respondents from taking any action against the

petitioner in accordance with law hereafter on

account of any subsequent development including

any subsequent conduct of the petitioner, if such a

course is permissible as per law including the policy

decisions of the respondents.

34. Needful be done within 15 days of the

pronouncement of the order as the petitioner is

running against time.

35. The application is allowed in the aforesaid terms with

costs of Rs.10,000/-

SANJAY KISHAN KAUL, J.

October 07, 2009 MOOL CHAND GARG, J.

dm

CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 26 of 26