Delhi High Court
Asi (M) Kamlesh Kumar vs Uoi & Ors. on 2 June, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 2nd June, 2011
+ W.P.(C) 3315/2011 & CM 6951/2011
ASI (M) KAMLESH KUMAR ..... Petitioner
Through: Mrs. Jyoti Singh,
Sr.Advocate with Mr.
Dinesh Yadav and Mr. N.S.
Bajwa, Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Anjana Gosain,
Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Counter affidavit has not been filed, but learned
counsel for the respondents places reliance on clause 2 of
para 9.15 of the Establishment Manual of CRPF to negate
the claim predicated by the petitioner.
2. Admittedly, on being selected, after completing the
mandatory course, vide a Signal dated 13.04.2010 the
petitioner was promoted from the post of ASI to SI(M)
pertaining to the vacancy year 2010-2011. On promotion,
the petitioner was allotted RTC-II AVADI vide Signal dated
23.04.2010.
3. Citing compelling domestic circumstances on account
of the wife of the petitioner being unwell and small children
being required to be looked after, petitioner made a request
under Rule 17.12 of the Establishment Manual praying that
either his posting order, on promotion, be cancelled or in
the alternatively, the promotion be kept in abeyance and
alternative that petitioner was willing to forgo his promotion
for a period of one year or till a vacancy arises.
4. It is apparent that the petitioner made three
alternatives so that he could continue to stay at the place of
his current posting.
5. Considering the request made by the petitioner and
accepting the third alternative, on 14.05.2010 an office
order was issued which reads as under:
"1. No.941195866 ASI(M) Kamlesh
Kumar of 88(M) Bn.has been promoted to the
rank of SI/M vide DIGP (Org.) ,Directorate
General, CRPF Signal No.P-VII-1/2010-Min
dated 13/04/2010 and further posted to RTC-
Avadi Vide IGP (Trg) Signal No.T-IX-20/2010-
Trg.-12 dated 23/04/2010. He took the
interview of IG(Pers) Dte. on 27/04/2010 for
change of his Sector/posting. His case has
been considered by the competent authority
and rejected being devoid of merit as
intimated by DIG (Org) Dte. vide Sig No.P-VII-
01/10-Min dated 07/05/2010.
2. The said ASI(M) has now submitted an
application dated 27/04/2010 (received in
this HQr. on 12/05/10) requesting to accept
his forgo of promotion for a period of one
year. The request made by the applicant
considered under the provision contained in
Rule 17.12 of Chapter-54 of Swamy's
Complete Manual on Establishment and
Administration read with para-8(b) of
Standing Order 02/2007, No.941195866
ASI(M) Kamlesh Kumar of 88(M) Bn. is hereby
permitted to forego his promotion to the rank
of SI/M released vide DIGP (Org.), Directorate
General, CRPF Signal No. P-VII-1/2010-Min
dated 13/04/2010, for a period of one year or
till a vacancy arises, which is later from the
date of refusal i.e. from 27/04/2010, due to
his compelled domestic problems."
6. It is apparent from a reading of second paragraph of
the office order that the third alternative suggested by the
petitioner was accepted by the department.
7. Now, the respondents require the petitioner to re-
compete at the competition examination for the next year.
8. Petitioner states that he has already earned a
promotion and that he is entitled to the benefit of the order
dated 14th May, 2010 which expressly records that
petitioner would be promoted in the next year vacancy or a
vacancy which may accrue thereafter, whichever event
happens first.
9. The rule on which the respondents would rely reads as
under:-
" 2. The SI(M) departmental examination will
be held every year. However, the selection
of the qualified candidates will be limited to
the share of departmental examination quota
in the vacancies of following vacancy year.
Thus the list of qualified candidates for one
vacancy year will not be carried forward to
next vacancy year."
10. It is apparent that there is a conflict in the decision
taken by the respondents and the requirement of the rule.
11. But, what weighs in favour of the petitioner is that
the Department gave an assurance to the petitioner that if
he forgoes his promotion for one year they would promote
him after the year was over or till a vacancy arose,
whichever is later. Had the Department told the petitioner
that he would be forgoing the benefit of promotion for all
times to come which he had earned by not joining at the
place where he was required to so do post promotion, the
petitioner could have decided whether it was worthwhile to
forgo a promotion at the cost of domestic happiness. In our
opinion having led the petitioner to a belief that he would
be promoted the next year or till a vacancy arises,
whichever is later, respondents cannot turn the table
against the petitioner and thus we dispose of the writ
petition directing the respondents to comply with the
assurance made in its order dated 14th May, 2010.
12. Needful would be done within a period of six weeks
from today.
13. No costs.
CM No.6951/2011(stay)
Disposed of as infructuous.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
JUNE 2, 2011/RS
