Ex-Sepoy Dev Raj vs Shri Vijay Singh & Anr
2010 Latest Caselaw 1784 Del

 *                      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  Cont. Cas. (C) No.116 of 2009

%                                                                                  06.04.2010

         EX-SEPOY DEV RAJ                                            ......Petitioner
                                          Through: Mr. P.K. Aggarwal & Mr. V.S. Tomar,
                                                   Advocates.

                                               Versus

         SHRI VIJAY SINGH & ANR.                          ......Respondents
                               Through: Mr. Sachin Datta & Mr. Manikya Khanna,
                                        Advs. for UOI with Captain Rahul Soni.

                                                              Date of Reserve: 9th March, 2010
                                                               Date of Order: 6th April, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                         JUDGMENT

1. By this contempt petition, the petitioner has alleged that the order of this court

passed in W.P. (C) No.2338 of 1992 has not been complied with. The operative part of

the order reads as under :-

"10. Since the aforesaid order is rendered non est the consequence would be that the petitioner be treated as reinstated and would be deemed to be in continuous service. In the present rank the petitioner would have retired on 8th March, 1995. On that basis the petitioner shall be considered for further promotion as and when it felt due and further he is already entitled to those promotions, consequential orders of extension of service would also be passed. This exercise shall be done within a period of four months from today."

2. Vide another order dated 27th February, 2008, the Division Bench clarified the

order in following terms :-

"In para 10 we have categorically directed that as the said order is rendered non est, the consequence would be that the petitioner is to be treated as reinstated from the date of discharge, i.e., 30.6.1992 and is also entitled to consequential benefits. Effect of that would be to consider the case of the petitioner for further promotions and if after consideration of this case he becomes entitled to promotion, he would get further extensions as well."

3. Notice of this contempt petition was served upon the respondents and respondents

informed that as a consequence of above order, the proceedings initiated against the

petitioner were dropped and vide order dated 21st May, 2009 sanction was accorded to

reinstate the petitioner not only in service with effect from 30th June, 1991, it was also

decided to grant him a deemed promotion to the rank of Niak (time scale) and he was

paid all retiral benefits as Acting Niak (time scale).

4. The petitioner did not dispute this position, however, it is contended by the

petitioner that though the petitioner was promoted to the rank of Niak but he was retired

from service on 31st March, 1995 while he was entitled to continue in the service till the

year 2000 in terms of para 134 of the Army Regulations Volume I. He also contended

that no Board was constituted to consider whether the petitioner was entitled to any

further promotion.

5. To this contention, it was submitted by the respondents that the petitioner was not

eligible for promotion to the rank of Niak and this is the reason that he was not promoted

to the regular post of Niak but was given promotion to the rank of Niak (time scale). He

was reinstated with effect from 30th June, 1991 and promotion to the rank of Niak (time

scale) was given to him on 1st April, 1994. He was retired on 31st March, 1995 from the

rank of Niak (time scale). It was submitted that deemed promotion of the petitioner to

Niak (time scale) did not entitle the petitioner to increased term of service. The

respondents relied upon following rules and regulations in support of this :-

"(a) AG's Branch, Army HQ letter No.91844/SCR/AG/PS2 (c) dt. 10th Oct., 1984.

(b) Para 134 (a) (i) of Regulations for the Army (Revised Edition) 1987.

(c) Govt. Sanction letter No.PC-79100/1476/Q/ST-

12/2008/AG/PS-2(c) dt. 21st May, 09.

(d) JAG's Deptt's Note 95 dt. 26th Feb, 2010 recorded on PC-

79092/598/VIII/Q/ST-12."

6. Considering the fact that the petitioner was given necessary promotion to the rank

of Niak (time scale) with pensionary benefits, I consider that no contempt was made out.

The petitioner was governed by service conditions of the Army and in view of the rules

and regulations, the petitioner could not have been granted regular promotion of Niak and

that is why he was granted promotion as Niak (time scale).

7. I find no merits in the contempt petition and the petition is hereby dismissed.

SHIV NARAYAN DHINGRA J.

APRIL 06, 2010 'AA'