Suneel Kumar Khatri vs Union Of India And Ors
2012 Latest Caselaw 6709 Del

2
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +       W.P.(C) 2826/2012

%                             Date of decision: 23rd November, 2012

       SUNEEL KUMAR KHATRI                        ..... Petitioner
                   Through :           Mr. Ankur Chhibber, Adv.

                    versus

       UNION OF INDIA AND ORS            ..... Respondents
                     Through : Mr. Saqib, Adv. for R-1 to
                               R-4.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J. (Oral)

1. On account of the petitioner's competence, knowledge and expertise with regard to matters relating to IT, the petitioner was posted on 1st August, 2005 with Electronic Data Process (EDP) Cell of the Directorate General of the CRPF at New Delhi. There is no dispute that by a signal dated 2nd August, 2005 the petitioner and 35 other inspectors were promoted to the Bihar sector to the post of Asst. Commandant (at page 18).

2. The order of promotion dated 2nd August, 2005 contained the following mandatory condition:

"(3) All promotes shall be relieved immediately on receipt of unit allotment and

will be directed to join new place latest by 25/08/2005."

3. The IGP, Eastern Sector vide a signal dated 5th August, 2005 posted the petitioner as Asst. Commandant which was then located at Tripura.

4. As the petitioner was not being relieved for joining at his new posting, he submitted representations dated 24th August, 2005 and 24th November, 2005. In the meantime, the batch mates of the petitioner were permitted to pick up their promotions.

5. These representations do not appear to have been considered by the respondents and evoked no response of any kind. As a result, he submitted a request dated 5th December, 2005 (at pg.38) seeking an interview with the Directorate General, CRPF for redressal of his grievance.

6. It is undisputed that the petitioner was granted an interview which resulted in issuance of a signal dated 27th January, 2006 which was to the following effect:

"COMPETENT AUTHORITY HAS ALLOWED INSP. S.K. KHATRI EDP CELL TO TAKE OVER ON PROMOTION AS ASSTT. COMDT. THIS DTE ITSELF IN PUBLIC INTEREST AND XXXXX TO BE RETAINED IN DTE GENL (EDP CELL) XXXXXX A SPL CASE TILL ARRIVAL OF SHRI AJAY DWIVEDI XXXXX COURSE..."

7. Mr. Ankur Chhibber, learned counsel for the petitioner has rightly pointed out that it was the stand of the CRPF that on account of the petitioner's expertise in the requisite specialty, the

respondents were not relieving him in public interest. Even as per the signal directing his posting, the respondents have directed that the petitioner would take over on promotion in the directorate itself. It was further directed that he would be retained till his reliever joins the posting.

8. The present writ petition has been necessitated for the reason that though the signal dated 27th January, 2006 finally gave directions for the petitioner picking up his promotion. The respondents gave the petitioner the emoluments as given to his batch mates upon promotions. However, in November, 2008, without any justification or notice to the petitioner, his basic pay was reduced by the respondents from 17,550/- to Rs.16,880/- on the pretext that the petitioner had joined the promoted post after 31st December, 2005.

9. The petitioner's representations in this regard dated 16th March, 2007, 28th January, 2009, 29th December, 2010 and 25th July, 2011 evoked no positive response. Finally, a letter dated 10 th October, 2011 was addressed by the respondents purporting to deal with the petitioner's representation (which is also not specified therein). This communication contains an unequivocal admission which deserves to be considered in extenso and reads as follows:

"2 In this connection it is intimated that Inspector Sunil Kumar Khatri of Dte. General was released on promotion as A/C vide Pers Dte. General Signal dated 2.8.2005 and allotted to E/Sector for further posting. The said Inspector was allotted to 66 Bn vide E/S signal

dated 5.8.05. E/S vide signals dated 30.8.05, 6.10.05, 21.10.05, 2.11.05 and 10.11.05 had requested DIG (Adm) Dte. General to relieve said Inspector on promotion as A/C to 66 Bn as DIG (Adm) is Cadre Controlling Authority for NGOs of Dte. General. However, the said Inspector was not relieved by EDP to 66 Bn where he was posted on promotion and a case for his retention was forwarded to Pers Dte. Vide note dated 5.9.2005 as services of said officer was very much essential in IT Wing for maintenance /implementation of SELO project. The case was examined in Pers Dte. And same was rejected by competent authority which was conveyed to IT Wing vide ION dated 21.09.2005. Instead of relieving the said Inspector on promotion, an application of said Inspector dated 24.11.2005 was again forwarded to Pers Dte. by IT Wing vide note dated 5.12.2005 after a lapse of three months with the request to permit him to take over the charge of A/C at a place other than declared HQr ie. In Dte. General. Though IG E/Sector is competent to accord such approval after concurrence from Pers Dte., the case was examined and the then IG (Pers) had permitted said Inspector to take over the charge as A/C at Dte. itself as a special case till arrival of Sh. Ajai Dwivedi A/C who was earmarked as his substitute by IT Wing. This was conveyed to IT Wing vide Pers Dte. signal dated 27.1.2006 and Inspector Sunil Kumar Khatri has taken over the

charge of A/C on 27.1.2006 at Dte. General (other than declared HQr i.e. 66 Bn).

From the date of taking over charge as A/C to date i.e. 27.1.2006 to 25.7.2011 (5 ½ years), the said officer remained silent. Now, when he was not granted STS being not eligible for the same by virtue of his taking over charge as A/C, he has submitted application for re-fixation of appointment date in the rank of A/C and grant of STS, drawal of arrears etc.

3. After thorough examination of representation of the officer, competent authority remarked that "while the officer is also partially responsible but a greater fault lies with his controlling officer for not releasing him on time or taking up the case on time. Let IG (IT) fix up responsibility for the lapse"

10. The petitioner is aggrieved by the fact that the respondents have found fault with the conduct of the officials of the CRPF who were responsible for not permitting the petitioner to join the post to which he stood promoted and in delaying his release from his posting with the EDP Cell, still they chose to fault the petitioner. The petitioner is also aggrieved by the failure of the respondents to notice that the petitioner had made a representation at the earliest on 24th August, 2005 for being relieved which was not even acknowledged, let alone given favourable consideration from the respondents. It is submitted that no fault can be attributed to the petitioner for the delay in joining the promotion post and the

petitioner cannot be penalized for the fault of the respondents who took a considered view that the petitioner could not be relieved from his posting at the EDP Cell at Delhi.

11. In support of his contentions, Mr. Ankur Chhibber, learned counsel for the petitioner has placed reliance on the pronouncement dated 27th October, 2009 in W.P.(C) No.21900/2005, Ashok Kumar vs. UOI and connected writ petitions, this Court is concerned with the eligibility condition of two years' service in a duty battalion for promotion to the post of Inspector and 2 IC under BSF as also the post of Inspector under CRPF. This Court had found that the posting was the responsibility of the respondents and the petitioners could not be faulted on being unable to meet such a requirement for the purposes of promotion. Given the fact, the respondents had power to waive such condition, the Court had found the action of the respondents in refusing to waive this stipulation as arbitrary and unjustified and the writ petitions were allowed.

12. The counter affidavit is blissfully silent on the manner in which the petitioner's representation dated 24th August, 2005 and 24th November, 2005 were dealt with. Given the factual narration noticed above, there appears to be merit in the petitioner's contentions. It has also been brought to the notice of this Court that by the order dated 10th October, 2011, the DIG (Pers.) directed the IG(IT) to fix responsibility for the lapse in not releasing the petitioner and not letting him join his promotion posting. The counter affidavit also does not disclose the steps taken by the

IG(IT) to fix up the responsibility in terms of the directions made in the order dated 10th October, 2011. The petitioner unfortunately still continues to draw salary less than the salary which is being drawn by his colleagues, who were also promoted by the order dated 2nd August, 2005.

13. Learned counsel for the respondents has contended that the petitioner was drawing a salary of Rs.16,880/- as on September, 2008 and not Rs.17,500/-. Not much turns on this submission. The fact remains that the respondents unilaterally, arbitrarily and without any justification reduced the salary of the petitioner.

14. At this stage, learned counsel for the respondents seeks time to place on record the representations dated 24th August, 2005, 24th November, 2005 as well as the action taken by the IG(IT) pursuant to the order dated 10th October, 2011. Let the record be produced on 4th December, 2012.

Copy of this order be given dasti to counsel for the respondents under the signature of the Court Master.

GITA MITTAL, J

J.R. MIDHA, J NOVEMBER 23, 2012 dk