Col L Padhi vs Union Of India & Ors.
2017 Latest Caselaw 4061 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P.(C) 10432/2016
                                 Date of decision: 10th August, 2017
COL L PADHI                                               ..... Petitioner
                           Through     Ms. Jyoti Singh, Sr. Advocate
                           with Ms. Sunita Padhi, Mr. Padma Kumar S
                           and Mr. Himanshu Gautam, Advocates.

                   Versus
UNION OF INDIA & ORS.                         ..... Respondent
                   Through      Ms. Shiva Lakshmi, CGSC and
                   Mr. Ruchir Ranjan Rai, Advocates with
                   Brigadier J.S. Lotay, DDG, DGQA.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA

SANJIV KHANNA, J. (ORAL)

Colonel L. Padhi, who is a Permanently Seconded Service

Officer in the Directorate General of Quality Assurance, seeks

promotion to the rank of Brigadier.

2. Quality Assurance Selection Board (5) of 2015 vide their meeting

held on 6th October, 2015, had assessed the petitioner, who was

working in the Stores discipline, as 'fit for promotion' to the rank of

Brigadier. Petitioner's immediate junior Colonel S. Itnal was also

assessed as fit to be promoted to the rank of Brigadier. The Board as

per the Minutes dated 6th October, 2015 was informed that all officers

being considered for promotion, including the petitioner, were clear

from vigilance.

2. Pursuant to the aforesaid Minutes, the petitioner was

empanelled for promotion to the rank of Brigadier.

3. Colonel S. Itnal consequent to the approval of the competent

authority vide communication dated 17th October, 2016 was promoted

to the acting rank of Brigadier. He was posted in-situ as Controller in

the same establishment against existing vacancy. The petitioner,

though he was senior to Colonel S. Itnal, was impliedly denied and

overlooked for promotion to the rank of Brigadier.

4. This has prompted the petitioner to file the present writ petition

challenging the action of the respondents in not promoting him to the

acting rank of Brigadier with effect from 9th August, 2016 as illegal,

and for quashing of order dated 17th October, 2016 to the extent the

petitioner was not promoted to the rank of Brigadier. Some other

prayers including issue of Writ of Mandamus for grant of promotion

to the rank of Acting Brigadier from 9th August, 2016, the date when

the petitioner had assumed charge of the post tenable by a Brigadier,

have been made.

5. The stand of the respondents in the counter affidavit and

additional affidavit, is that a Fact Finding Inquiry relating to supply of

disinfectant fluid (black) from a private supplier/manufacturer was

held in 2008. Out of 18 batches supplied, 6 were accepted and the

remaining 12 were rejected due to unsatisfactory test results.

However, on re-testing, the 12 batches were also cleared. In the

meanwhile, the shelf life of the disinfectant, which was only 12

months, had expired. As per the counter affidavit, the petitioner had

failed to mention and notify the expiry date when the failed material

was referred for second testing. Further, the rejected stores had been

stored in the bond room after expiry of delivery period without

informing the purchasing authority. Other lapses on the part of the

petitioner were averred.

6. Learned senior counsel for the petitioner, on the other hand,

disputes the said assertions and submits that the findings of the fact

finding committee do not implicate and condemn the petitioner, for he

was not responsible for the alleged lapses. In support, reference is

made to the Fact Finding Inquiry report. The charge against the junior

of the petitioner was that he had not taken the approval of SQAO i.e.

the post on which the petitioner was working. As the petitioner was

not responsible and guilty of any lapse and misconduct, the Army did

not deem it fit and necessary to initiate and take action against the

petitioner. Thus, the petitioner, it is submitted, is being punished by

being denied promotion without any finding that he was at fault and

responsible.

7. We do not think that we are required to go into the said factual

assertion or dispute of guilty or not guilty, for the respondents have

not initiated any proceedings under the applicable Act or Rules against

the petitioner. It is accepted and admitted that the petitioner cannot

be proceeded against under the Army Act, 1950. Further, the Army

has given discipline and vigilance clearance to the petitioner. The

Army has certified that the petitioner is clean from vigilance and

discipline angle.

8. Counsel for the respondents has drawn our attention to the letter

dated 1st March, 2016, written by the Director Vigilance,

DGQA/Vigilance Cell, Ministry of Defence questioning the vigilance

clearance given to the petitioner. This letter refers to the Central

Vigilance Commission's advice for initiation of major penalty

proceedings against the petitioner. Approval was granted by the

Defence Minister. Our attention was also drawn to an earlier letter

dated 10th November, 2015, which records that the Army was the

disciplinary authority in the case of the petitioner and that the Central

Vigilance Commission had advised initiation of major penalty

proceedings vide their order/opinion dated 11th August, 2010.

9. It is difficult to appreciate the stand of the respondents relying

upon the Central Vigilance Commission's advice and the letters dated

10th November, 2015 and 1st March, 2016 for the reason that it is

accepted by the respondents that they are not in a position and cannot

initiate disciplinary proceedings against the petitioner. It is stated that

the said proceedings would be barred by limitation and are not

maintainable under the Army Act. Further, vigilance clearance was

accorded to the petitioner on two occasions by the Army,

notwithstanding the Central Vigilance Commission's advice.

10. This being the position, it cannot be presumed that the petitioner

was guilty of any wrong doing and misconduct. In case the petitioner

is denied promotion, as has been done, he would suffer adverse

consequences as if he was at fault and blameworthy. This cannot be

permitted or allowed. Wrong doing and culpability on the part the

petitioner cannot be assumed without findings being recorded in

accordance with law under the Army Act or applicable rules. The

advice and opinions, at best, can be the starting point. They cannot be

read and treated as firm and conclusive findings. Thus, the petitioner

has been pronounced and held guilty and therefore denied promotion

in spite of clearance from the Army and empanelment by the Quality

Assurance Selection Board.

11. We accordingly allow the present writ petition with a direction

to the respondents to consider the petitioner's case for promotion to

the rank of Acting Brigadier from the date his immediate junior was

promoted. On promotion being granted, seniority would be given to

the petitioner and arrears of salary would be also paid. The said

exercise would be completed within a period of four months from the

date a copy of this order is received by the respondents. In case

promotion is not granted and payment is delayed beyond four months,

the respondents would pay interest @ 8% per annum from the date of

this order till payment is made. In the facts of the present case, there

would be no order as to costs.

SANJIV KHANNA, J.

NAVIN CHAWLA, J.

AUGUST 10, 2017 NA